FRIDAY CHARLES V THE STATE OF LAGOS
March 17, 2025MOHAMMED FAROUK AUWALU V. TABA ALLWELL BROWN
March 17, 2025Legalpedia Citation: (2023-03) Legalpedia 15664 (CA)
In the Court of Appeal
Holden at Lagos
Fri Mar 31, 2023
Suit Number: CA/L/619/2018
CORAM
OBANDE FESTUS OGBUINYA JUSTICE COURT OF AAPPEAL
ABUBAKAR SADIQ UMAR JUSTICE COURT OF AAPPEAL
ABDULLAHI MAHMUD BAYERO JUSTICE CORT OF APPEAL
PARTIES
MRS. RAFIATU CAROLINE ADUNNI ORUKU.
2. MRS. OLASUNBO ISMAIL nee ORUKU
3. MRS. ABIOLA AKINSANYA nee ORUKU
4. MRS. KEMI BOOTHE nee ORUKU
5. MR. ELIAS ORUKU
6. MR. KAYODE ORUKU
7.MRS. YETUNDE YUSUF nee ORUKU
8. MISS SHERI ORUKU
9. MR. BUNMI ORUKU
10. MR. TAJUDEEN ORUKU
11. OLUWATOSIN ORUKU
12. MICHAEL MOSHOOD ORUKU.
APPELLANTS
1. MR. BODE ORUKU
2. MRS. WASILAT ARAMIDE ADEYEMI
nee ORUKU RESPONDENTS
3. MRS. SHADE BALOGUN nee ORUKU
4. SEGUN GANI ORUKU
5. MRS. OMOWOWUNMI ADELEYE
nee ORUKU
6.MOSES ORUKU
7. THE PROBATE REGISTRAR OF THE HIGH COURT.
RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
This appeal probes into the correctness of the decision of the High Court of Lagos State (trial court). The appellants and the 7th respondent were the defendants and the 1st-6th respondents were the claimants at the trial court. One Ambassador Ayoola Nurudeen Oruku, who was the husband of the first appellant and the father of the first – sixth respondents and the appellants, died on 21st December, 2016 at No. 4 Idowu Lane, Ikeja, Lagos. Prior to his death, he made a Will on 30th December, 2014 which was lodged at the Probate Registry of the lower court. The said Will was read on 9th March, 2017. The first – sixth respondents alleged that: the Will had no executors, the required witnesses were not present at the same time and the signature of one of the witnesses predated the Will. When the respondents noticed an application for grant of probate in respect of the Will, they filed a caveat at the Probate Registry of the lower court. Sequel to these, the respondents beseeched the trial court, via an originating summons, and sought a Declaration that the Will of Ambassador Ayoola Nurudeen Oruku (Deceased) dated 30th December, 2014 is null, void and of no effect.
In reaction, the appellants, upon service of the processes on them, filed a counter-affidavit, in opposition to the originating summons and a preliminary objection, with affidavits in support, which prayed the trial court for an order dismissing/striking out the suit or converting the originating summons to a writ of summons. The trial court heard the preliminary objection and the originating summons together, overruled the preliminary objection and granted the originating summons partly. The appellants were dissatisfied with the judgment. Hence, they have launched an appeal to this court.
HELD
Appeal dismissed.
ISSUES
Was it right for the trial court to hear and determine the case of the Respondents on the Originating Summons of the Respondents?
Whether on the totality and circumstance of the case, the trial Court was right in nullifying and voiding the Will of Late Ambassador Ayoola Nurudeen Oruku?
RATIONES DECIDENDI
CIVIL ACTIONS – MODES OF COMMENCEMENT OF CIVIL ACTIONS
By way of necessary prefatory observations, originating summons, an originating or initiating process, is one of the four major modes of commencement of civil actions usually prescribed in the rules of courts of first instance jurisdiction. The four broad methods are, videlicet: writ of summons, originating summons, originating motions and petitions. Per – OBANDE FESTUS OGBUINYA, JCA.
ORIGINATING SUMMONS – WHEN ORIGINATING SUMMONS IS USED
The originating summons procedure is employed by an aggrieved party when the sole or principal question in issue is one, or likely to be one, of interpretation of a written law/enactment or any instrument, deed, will, contract or other written documents. It is a procedure which is friendly to non-contentious cases where there are no substantial disputes as to facts. Contrariwise, it is unavailable in hostile proceedings that exhibit riotous facts. In other words, it is not utilisable in situations where justice of a case demands settlement of pleadings. Nor it is cognisable where the claim is propagated in damages. Per – OBANDE FESTUS OGBUINYA, JCA.
ORIGINATING SUMMONS – RATIONALE FOR THE USE OF ORIGINATING SUMMONS
The rational for the procedure, decipherable from its simplicity, is to fast track and expedite cases that donot showcase friction in facts thereby conserving the scarce juridical time and space. These peculiar features of originating summons have received the blessing of the apex court in loads of authorities, see order 3 rule 5 of the HC Rules, Inakoju v. Adeleke (2007) 4 NWLR (Pt. 1025) 1; Dapianlong v. Dariye (2007) 8 NWLR (Pt. 1036) 332; Ezeigwe v. Nwawulu (2010) 4 NWLR (Pt. 1183) 159; Anyanwoko v. Okoye (2010) 5 NWLR (Pt. 1188) 407; Elelu-Habeeb v. A. –G., Fed. (2012) 13 NWLR (Pt. 1318) 423; Atago v. Nwuche (2013) 3 NWLR (Pt. 1341) 337; Braithwaite v. Skye Bank Plc. (2013) 5 NWLR (Pt. 1346) 1; Asogwa v. PDP (2013) 7 NWLR (Pt. 1353) 207; Olley v. Tunji (2013) 10 NWLR (Pt. 1362) 275; Opia v. INEC (2014) 7 NWLR (Pt. 1407) 431; A. –G., Lagos State v. A. –G., Fed (2014) 9 NWLR (Pt. 1412) 217; Jev. v. Iyortyom (supra); Danladi v. Dangiri (2015) 2 NWLR (Pt. 1442) 124; Oguebego v. PDP (2016) 4 NWLR (Pt. 1503) 446; N.A.C.B. Ltd. v. Ozoemelam (2016) 9 NWLR (Pt. 1517) 376; Ogah v. Ikpeazu (2017) NWLR (Pt. 1594); Alfa v. Attai (2018) 5 NWLR (Pt. 1611) 59; Olomoda v. Mustapha (2019) 6 NWLR (Pt. 1607) 36; Okezie v. CBN (2020) 15 NWLR (Pt. 1747) 181. Per – OBANDE FESTUS OGBUINYA, JCA.
ORIGINATING SUMMONS – ORIGINATING SUMMONS MAY BE APPLIED BY ANY PERSON CLAIMING ANY LEGAL/EQUITABLE RIGHT UNDER A WILL
In other words, the first – sixth respondents’ cause of action centres on the interpretation of the Will. To begin with, by virtue of the provision of order 3 rule
5 of the HC Rules, 2004, which is in pari materia with that of order 5 rule 4 of the HC Rules, 2019, any person claiming any legal or equitable right under a Will may apply by originating summons for the determination of any question of construction flowing from the instrument and for declaration of rights of the person interested. Thus, an originating summons, as decreed by the above clear provision is deployed when the sole/principal question in controversy circles around interpretation of a Will. Per – OBANDE FESTUS OGBUINYA, JCA.
INTERPRETATION – WHAT INTERPRETATION CONNOTES
In law, “interpretation” connotes the process of determining what something, especially, the law or a legal document, means; the ascertainment of meaning, see Abacha v. FRN (2006) 4 NWLR (Pt. 970) 239. Per – OBANDE FESTUS OGBUINYA, JCA.
CONFICT IN AFFIDAVITS – MEANING OF CONFLICT IN AFFIDAVITS
In the legal parlance, conflict in affidavits denotes “the persisting violent disagreements in the averments of the contending parties which makes it unsafe, and indeed impossible, for the court, in the face of the disagreement, to prefer from the affidavits of both, the position of one to the other”, Ezechukwu v. Onwuka (2016) 5 NWLR (Pt. 1506) 529 at 552, per M. D. Muhammad, JSC. In such a case, the law mandates and compels the court, to seised of the matters, to call for oral evidence which will be geared towards the resolution of the conflict. Per – OBANDE FESTUS OGBUINYA, JCA.
CONFLICT IN AFFIDAVITS – THE ATTITUDE OF THE COURT TOWARDS CONFLICTING AFFIDAVITS
It is apropos to place on record, pronto, that this hallowed principle of procedural law is a flexible one. In this regard, a court is enjoined to deploy one cardinal principle of law. It is this. Where the affidavits of the contending parties are in conflict, the court has the unbridled licence of the law to use any available documents, in support of them, as the barometer to gauge their veracity, see Lafia Local Govt. v. Gov., Nasarawa State (2012) 17 NWLR (Pt. 1328) 94; Ezechukwu v. Onwuka (supra), Nagogo v. CPC (2013) 2 NWLR (Pt. 1339) 448; Gbileve v. Addingi (2014) 16 NWLR (Pt. 1433) 394; Atungwu v. Ochekwu (2013) 14 NWLR (Pt. 1375) 605; Alfa v. Attai (2018) 5 NWLR (Pt. 1611) 59; Akiti v. Oyekunle (2018) 8 NWLR (Pt. 1620) 182; UBN PLC v. Awmar Properties Ltd. (2018) 10 NWLR (Pt. 1626); Biem v. SDP (2019) 12 NWLR (Pt. 1687) 377; Onwubuya v. Ikegbunam (2019) 16 NWLR (Pt. 1697) 94. Of course, the law assumes any side buttressed by the documents as speaking the truth. In the presence of this current and inelastic position of the law, which is a rider to calling of oral evidence where affidavits contrast sharply, the lower court did not, in the least, insult the law when it employed the available document, the Will, exhibit BO1, before it to resolve the conflicts in the incompatible affidavits. Per – OBANDE FESTUS OGBUINYA, JCA.
CONFLICT IN AFFIDAVIT – THE POSITION OF THE LAW ON ASSESSMENT OF AFFIDAVITS
In any event, since the affidavits are not parol, which involves credibility of deponents, this court is eminently qualified to assess them without seeing and assessing their demeanours, see Ezechukwu v. Onwuka (supra). Okoro v OkoroO(2018) 16 NWLR (Pt. 1646) 506. This juridical survey, with due reverence, exposes the poverty of the learned appellants’ senior counsel’s seemingly dazzling argument on the knotty point: calling of oral evidence to resolve conflicts in the opposing affidavits. The elegant argument is lame. The lower court’s finding is unassailable and in total alignment with the tenet of the law. Per – OBANDE FESTUS OGBUINYA, JCA.
MISCARRIAGE OF JUSTICE – MEANING OF MISCARRIAGE OF JUSTICE
Miscarriage of justice, in law, denotes such a departure from the rules which pervades all judicial processes as to make what happened not, in the proper sense of the word, a judicial procedure, see Amadi v. NNPC (2000) 10 NWLR (Pt. 674) 76. It signifies a decision or outcome of legal proceedings which is prejudicial or inconsistent with the substantial rights of a party. It implies a failure of justice and a reasonable probability of more favourable result of the case for a party alleging it, see Larmie v. DPM Services (2006) All FWLR (Pt. 296) 775; Gbadamosi v. Dairo (2007) 3 NWLR (Pt. 1021) 282; Aigbobahi v. Aifuwa (2006) 6 NWLR (Pt. 976) 270; Akpan v. Bob (supra); Afolabi V. W,S.W. Ltd (2012) 7 NWLR (Pt. 1329) 286; Abubakar V. Nasamu (No. 2) (2012) 17 NWLR (Pt. 1332) 523; Oke V. Mimiko (No.2) (2014) 1 NWLR (Pt. 1338) 332; Fredrick v. Ibekwe (2019) 17 NWLR (Pt. 1702) 467; Tyonex (Nig.) Ltd. v. Pfizer Ltd. (2020) 1 NWLR (Pt. 1704) 125. Per – OBANDE FESTUS OGBUINYA, JCA.
EVALUATION OF EVIDENCE – JURISDICTION OF APPELLATE COURTS TO EVALUATE EVIDENCE
As a prelude, the case-law gives the courts the nod to evaluate documentary evidence, see Fagunwa v. Adibi (2004) 17 NWLR (Pt. 903) 544. Admirably, the law, in order to foreclose any injustice, donates concurrent jurisdiction to this court and the lower court in evaluation of documentary evidence, see Gonzee (Nig.) Ltd. v. NERDC (2005) 13 NWLR (Pt. 943) 634; Olagungu v. Adesoye (2009) 9 NWLR (Pt. 1146) 225; Ayuya v. Yorin (2011) 10 NWLR (Pt.1254) 135; Eyibio v. Abia (2012) 16 NWLR (Pt. 1325) 51; Odutola v. Mabogunje (2013) 7 NWLR (Pt. 1354); CPC v. Ombugadu (2013) 18 NWLR (Pt. 1385) 66; UTC (Nig) Plc. v. Lawal (2014) 5 NWLR (Pt. 1400) 221; Ogundalu v. Macjob (2015) 8 NWLR (Pt. 1460) 96; Onwuzuraike v. Edoziem (2016) 6 NWLR (Pt. 1508) 215; Ezechukwu v. Onwuka (2016) 5 NWLR (Pt. 1506) 529, C.K. W.M.C. Ltd. v. Akingbade (2016) 14 NWLR (Pt. 1533) 487; Emeka v. Okafor (2017) 11 NWLR (Pt. 1577); 410; Okoro v. Okoro (2018) 16 NWLR (Pt. 1646) 506; D.M.V (Nig) Ltd. v. NPA (2019) 1 NWLR (Pt. 1652); Olomoda v. Mustapha (2019) 6 NWLR (Pt. 1667) 36. I will harness from this co-ordinate jurisdiction in the appraisal of the Will in the appeal. Per – OBANDE FESTUS OGBUINYA, JCA.
RULE OF INTERPRETATION – THE COURTS ARE ENJOINED TO APPLY THE LITERAL RULE AS A CANON OF INTERPRETATION
In addition, in construing a document, the court is enjoined by law to apply the literal rule as a canon of interpretation, id est, to accord the words employed,therein their ordinary grammatical meaning without any embellishments, see UBN v. Ozigi (1994) 3 NWLR (Pt. 333) 385, UBN Ltd. v. Sax (Nig.) Ltd. (1994) 8 NWLR (Pt. 361) 150; Enilolobo v. N.P.D.C. Ltd. (2019) 18 NWLR (Pt. 1703) 168. I will pay due respect to these legal commandments, on canons of interpretation of document, in order not to defile the law. Per – OBANDE FESTUS OGBUINYA, JCA.
WILLS – A WILL MUST BE IN STRICT COMPLIANCE WITH THE PRESCRIPTION OF THE STATUTE OF WILLS
The point must be emphasised that, generally, a testator enjoys the freedom of testamentary disposition, see Omokaro v. Omokaro (2021) 17 NWLR (Pt.1806) 449. However, the Will must be in strict compliance with the mandatory prescription of the statutes on wills, see Dawodu v. Isikalu (2019) 4 NWLR (Pt. 1663) 409; Anya v. Anya (2020) 9 NWLR (Pt. 1729) 411. Flowing from that statutory infraction, anatomised above, the Will constitutes a pessimi exempli of a valid will. I am not armed strong in law to crown the Will with the underserved toga of validity and viability. Per – OBANDE FESTUS OGBUINYA, JCA.
WILLS – ON WHOM LIES THE BURDEN TO PROOF THE VALIDITY OF A WILL
For the purpose of ex abundanti cautela, let me observe, perforce, that the law, in its infinite wisdom, casts the initial/legal burden of proof of validity, genuiness and authenticity of a will on its propounder: an executor or administrator who offers a will or other testamentary document for admission to probate. The burden, which oscillates like a pendulum, shifts and rests on the adversary after the propounder has made a prima facie case of an entitlement of its admission to probate, see Johnson v. Maja (1951) 13 WACA 290; Oketola v. Boyle (1998) 2 NWLR (Pt. 539) 533; Nsefik v. Muna (2014) 2 NWLR (Pt. 1390) 151; Amadi v. Amadi (2017) 7 NWLR (Pt. 1563) 108; Dawodu v. Isikalu (2019) 4 NWLR (Pt. 1663) 409; Anya v. Anya (2020) 9 NWLR (Pt. 1729) 411. There were/are a legion of evidence in the affidavits of the warring parties, housed in the record, the keystone of the appeal, that it was the appellants that made application to the seventh respondent for admission of the Will to probate. It flows that they were the propounders/proponents of the Will. In effect, they own the burden to establish its validity, genuiness and authenticity. In the face of the undiluted affirmation of the lower court’s declaration of the invalidity of the Will, done after due consultation with the law, the appellants failed woefully to discharge the onus probandi vis-à-vis the validity of the Will. This constitutes a serious coup de grace to their stance on the issue. Per – OBANDE FESTUS OGBUINYA, JCA.
PERVERSE VERDICT – WHEN IS A VERDICT OF COURT PERVERSE
A verdict of court is perverse when: it runs counter to the pleadings and evidence before it, a court takes into account matters it ought not to take into consideration, a court shuts its eyes to the evidence, a court takes irrelevantmatters into account or it has occasioned a miscarriage of justice, see Udengwu v. Uzuegbu (2003) 13 NWLR (Pt. 836) 136; Nnorodim v. Ezeani (1995) 2 NWLR (Pt. 378) 448; Lagga v. Sarhuna NWLR (Pt. 1114) 427; Onyekwelu v. Elf Pet (Nig.) Ltd. (2009) 5 BWKR (Pt. 1133) 181; Momoh v. Umoru (2011) 15 NWLR (Pt. 1270) 217; Ihunwo v. Ihunwo (2013) 8 NWLR (Pt. 1357) 550; Olaniyan v. Fatoki (2013) 17 NWLR (Pt. 1384) 477; Udom v. Umanah (No.1) (2016) 12 NWLR (Pt. 1526) 179 Adeokin Records v. M.C.S.N. (Ltd)/GTE) (supra); Mamonu v. Dikat (2019) 7 NWLR (Pt 1672) 495; MTN (Nig.) Comm. Ltd. v. Corporate Comm. Inv. Ltd. (2019) 9 NWLR (Pt. 1678) 427; Offodile v. Offodile (2019) 16 NWLR (Pt. 1698) 189; Bi- Courtney Ltd. v. A-G, Fed. (2019) 10 NWLR (Pt. 1679) 112; Fredrick v. Ibekwe (2019) 17 NWLR (Pt. 1702) 467; Uzodinma v. Ihedioha (2020) 5 NWLR (Pt. 1718) 529. Per – OBANDE FESTUS OGBUINYA, JCA.
JURISDICTION – MEANING OF JURISDICTION
Jurisdiction, a mantra in adjudication, connotes the authority/power of a court to determine a dispute submitted to it by contending parties in any proceeding, see Ajamole v. Yaduat (No. 1) (1991) 5 SCNJ 172; Mobil Pro. Co. Untltd. v. LASEPA (2002) 18 NWLR (Pt. 798) 1; Ndaeyo v. Ogunnaya (1977) 1 IM SLR 300; Ebhodagbe v. Okoye (2004) 18 NWLR (Pt. 905) 472; Garba v. Mohammed (2016) 16 NWLR (Pt. 1537) 144; A.-G., Kwara State v. Adeyemo (2017)1 NWLR (Pt. 1546) 210; Isah v. INEC (2016) 18 NWLR (Pt. 1544) 175; Angadi v. PDP (2018) 15 NWLR (Pt. 1641) 1; Nduul v. Wayo (2018) 16 NWLR (Pt. 1646) 548. Per – OBANDE FESTUS OGBUINYA, JCA.
JURISDICTION – WHEN IS A COURT OF LAW INVESTED WITH JURISDICTION?
A court of law is invested with jurisdiction to hear a matter when:
“1. it is properly constituted as regards numbers and qualifications of members of the bench, and no member is disqualified for one reason or another; and
2. the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction; and
3. the case comes before the court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction”, see Modukolu v. Nkemdilim (2006) 2 LC 2081961) NSCC (vol. 2) 374 at 379, per Bairamian F. J., Tukur v. Taraba State (1997) 6 SCNJ 81; Daro v. UBN (2007) 16 NWLR (Pt. 1029) 164; Okereke v. Yar’Adua (2008) 12 NWLR (Pt. 1100); Saraki v. FRN (2016) 3 NWLR (Pt. 1500) 531; Oni v. Cadbury Nig. Plc. (2016) 9 NWLR (Pt. 1516) 80; Diamond Bank Ltd. v. Ugochukwu (2016) 9 NWLR (Pt. 1517) 193; Okpe v. Fan Milk Plc. (2017) 2 NWLR (Pt. 1549) 282; Bello v. Damisa (2017) 2 NWLR (Pt. 1550) 455; Osi v. Accord Party (2017) 3 NWLR (Pt. 1553) 387; Nworka v. Ononeze-Madu (2019) 7 NWLR (Pt. 1672) 422; Adeleke v. Oyetola (2020) 6 NWLR (Pt. 1721) 440. The three ingredients must co-exist in order to infuse jurisdiction into a court. Per – OBANDE FESTUS OGBUINYA, JCA.
JURISDICTION – THE APPROPRIATE ORDER FOR A COURT TO MAKE WHERE IT LACKS JURISDICTION
Where the jurisdiction of a court to hear a matter is eroded, the order it makes is plain. It is one of striking it out, see Okolo v. UBN Ltd. (2004) 3 NWLR (Pt. 859) 87; Gombe v. P.W. (Nig.) Ltd. (1995) 6 NWLR (Pt. 402); CGG v. Ogu (2005) 8 NWLR (Pt. 927) 366; Uwazuruike v. A.-G., Fed. (2007) 8 NWLR (Pt. 1035) 1; WAEC v. Adeyanju (2008) NWLR (Pt. 1092) 270; Dairo v. UBN Plc. (2007) 16 NWLR (Pt. 1071) 347; Ikechukwu v. FRN (supra); Inakoju v. Adeleke (2007) 4 NWLR (Pt.1052) 423; Onyero v. Nwadike (2011) 18 NWLR (Pt. 1279) 954; Odom v. PDP (2015) 6 NWLR (Pt. 1456) 527; Min., W.O.T., Adamawa State v. Yakubu (2013) 6 NWLR (Pt. 1351) 481. Per – OBANDE FESTUS OGBUINYA, JCA.
CASES CITED
STATUTES REFERRED TO
Lagos State High Court (Civil Procedure) Rules, 2019
Lagos State Will Law
Wills Law, Cap W2, vol. 7, Laws of Lagos State, 2004
