CORAM

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Obande Festus Ogbuinya JCA

Abubakar Sadiq Umar JCA

Abdullahi Mahmud Bayero JCA

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PARTIES

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1. MRS. HARRIET ANN OMOBOLANLE ADESOLA

2. MRS. ROSAMOND VERA CRUZ

 

 

APPELLANTS 

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1. MRS. ELIZABETH OLADUNI LAWRENCE

2. MR. OLADIPO HARRY LARDNER (JNR)

3. THE PROBATE REGISTRAR, HIGH COURT OF LAGOS STATE

4. BARRISTER TOKUNBO AYANIYI

 

 

RESPONDENTS 

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AREA(S) OF LAW

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APPEAL, EVIDENCE, JUDGMENT, LEGITIMACY LAW, PRACTICE AND PROCEDURE, PROBATE AND ADMINISTRATION

 

 

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SUMMARY OF FACTS

The Respondents (Claimants at the lower court) sought for a declaration that the second Respondent who is a child of the deceased is a beneficiary of the estate of the Late Harry Afolabi Lardner SAN along with other reliefs. In response to the originating summons, the Appellants filed a counter affidavit. However the lower Court ordered the parties to file pleadings having found that the issues before it were contentious.

Judgment was delivered in favour of the Respondents wherein the trial Court and granted all but one of the reliefs sought by the claimant. The court also gave a conditional judgment to the effect that subject to the result of a sibling DNA test to be conducted on the 2nd Respondent within 30 days, the said Respondent would either be declared a child of the deceased and beneficiary of the deceased’s estate or not.

Being dissatisfied with the Judgment of the lower Court, the Appellants appealed to this Court hence the instant appeal.

 

 

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HELD

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Appeal allowed in part

 

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ISSUES

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Whether the Lower Court properly evaluated the facts and evidence placed before it by the parties before granting the reliefs in this matter as presently constituted?

 

 

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RATIONES DECIDENDI

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ORDER – POWER OF COURTS TO MAKE ORDERS AS JUSTICE OF CASE DEMANDS

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It is trite that the lower Court has the power from time to time to make any order necessary for determining the real question in controversy. See Onam v. Nnamchi (2017) LPELR- 42679 where it was held that the Court can make any order or grant any relief as far as the justice of the case demands. – Per A. S. Umar, JCA

 

 

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CONSEQUENTIAL RELIEFS – POWER OF COURTS OF RECORD TO GRANT CONSEQUENTIAL RELIEFS

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A Court of record though lacking in power to grant relief that was not sought, is endowed with the power to grant consequential reliefs even though not claimed if it would give effect to the Judgment of the Court. See. AKINBISEHIN v. OLAJIDE (2018) LPELR-51172 (CA). This is important because the end result of law is justice and justice should not only be done but must be manifestly seen to have been done. See the old English case of KING v. SUSSEX JUSTICES EX-PARTE MC CARTHY (1924) 1 KB 256 at p.259. – Per A. S. Umar, JCA

 

 

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LEGITIMACY – 3 MAJOR WAYS OF DETERMINING LEGITIMACY OF A CHILD

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It should be noted that a child is legitimate if born in wedlock but children born outside marriage can also be regarded as legitimate children for certain purposes, if paternity has been acknowledged by the putative father. See ALAKE v. PRATT 15 WACA 20; OBASOHAN v. OBASOHAN (2019) LPELR-47187 (CA). This Court in the case CHIBUEZE OKOLONWAMU & ANO v. NKEM OKOLONWAMU & ORS. (2014) LPELR-22631 per Ogunwumiju, JCA held thus:

Paternity of a child can be determined by three major ways which are akin to the ways of proving legitimacy of a child.

They are: 1. Paternity by existing marriage: a child born during the pendency of a valid marriage between a couple is automatically presumed legitimate. 2.

Paternity by subsequent marriage to the mother: this occurs when a child is born at a time when the mother was not married to the father and after whose birth the mother and father entered into a valid marriage. 3. Paternity by acknowledgment by the father accepting paternity of the child: this includes paying for the hospital bills and upkeep of the child, introducing the child to his family as his child etc.”

​It should be noted that three major ways of proving or establishing the legitimacy of child as contained in the decision reproduced above are disjunctive, that is, a proof of one the three ways is sufficient and enough to establish the legitimacy of a child. See Obasohan v. Obasohan (supra). – Per A. S. Umar, JCA

 

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COURTS – WHEN APPELLATE COURTS WILL NOT DISTURB FINDINGS OF FACTS OF LOWER COURTS

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…having gone through the proceedings at the lower Court, I am unable to see any perverse finding by the learned trial Judge. Therefore, this Court will not be willing to disturb the finding of facts of the lower Court. See OKAFOR v. OKAFOR (2014) LPELR-23561(CA); OLADELE & ORS v. ANIBI (1998) LPELR-2545(SC). – Per A. S. Umar, JCA

 

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STNDARD OF PROOF – STANDARD OF PROOF IN A CIVIL SUIT

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Ordinarily in a civil suit and by virtue of Section 134 of the Evidence Act, 2011, the standard of proof is on the preponderance of probability – Per A. S. Umar, JCA

 

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DECLARATORY JUDGMENTS – POWERS OF THE COURT TO MAKE A DECLARATION

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The contention of the Appellants that the declaratory relief sought by the Respondents is not to declare the 2nd Respondent as the son of the deceased but that the 2nd Respondent is a beneficiary of the Estate of Harry Afolabi Lardner, SAN is misconceived. There is no way the Court will determine whether the 2nd Respondent is a beneficiary of the estate of the deceased without first establishing the paternity of the 2nd Respondent, therefore it is my considered view that the paternity of the 2nd Respondent is an issue and the lower Court was right to pronounce on it. In the case of ACB LTD v. EWARAMI (1978) LPELR-24886, the Supreme Court per Irikefe, JSC while determining the question of whether the power of Courts to make declaratory reliefs is limited held thus: "In Hanson v. Radcliffe U.D.C. – 1922 2 Chancery p. 490 at p. 507 – Lord Sterndale – M.R. had this to say on declaratory judgments:- the power of the Court to make a declaration, where it is a question of defining the rights of the two parties, is almost unlimited; and I might say only limited by its own discretion. The discretion should, of course, be exercised judicially, but it seems to me that the discretion is very wide. Some years before the above decision, Bankes, LJ., when considering the scope of this rule was no less emphatic when he said- There is, however, one limitation which must always be attached to it, that is to say, the relief claimed must be something it would not be unlawful or unconstitutional or inequitable for the Court to grant or contrary to the accepted principles upon which the Court exercises its jurisdiction. Subject to this limitation I see nothing to fetter the discretion of the Court in exercising a jurisdiction under the rule to grant relief, and having regard to general business convenience and the importance of adapting the machinery of the Courts to the needs of suitors I think the rule should receive as liberal a construction as possible. See Guaranty Trust Coy of New York v. Hannay & Coy (1915) – 2 KB. p. 506 at p. 572. See also Ekwuno v. Ikejika- 5 FSC p. 156 and Ibeneweka v. Ego-Oka 1964 – 1 WLR P. 219." Flowing from the above, it is my conclusion that the lower Court was right to have directed the parties to conduct a sibling DNA test at Pathcare Laboratories to scientifically remove all doubts, though I am of the firm opinion that the lower Court ought to have made this direction as an interlocutory order to avoid these unnecessary controversies, nevertheless, the cause of justice must not only be served but must be manifestly seen to have been served, I strongly believe this is what the DNA result will achieve. – Per A. S. Umar, JCA

 

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ESTATE OF THE DECEASED – DUTY TO RENDER ACCOUNT OF THE ESTATE OF THE DECEASED

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It is trite that the duty to render account of the Estate of the deceased is on the executors, administrators or other named agents of the estate and not on the children of the deceased. See the case of AMOS v. IRABOR & ORS (2021) LPELR-54871. – Per A. S. Umar, JCA

 

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CASES CITED

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STATUTES REFERRED TO

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Evidence Act, 2011 

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