ATOBATELE & ANOR v. PROBATE REGISTRAR, HIGH COURT OF LAGOS STATE & ANOR (2020)

ATOBATELE & ANOR v. PROBATE REGISTRAR, HIGH COURT OF LAGOS STATE & ANOR

(2020)LCN/14499(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Friday, July 17, 2020

CA/L/476/15

Before Our Lordships:

Mohammed Lawal Garba Justice of the Court of Appeal

Joseph Shagbaor Ikyegh Justice of the Court of Appeal

Balkisu Bello Aliyu Justice of the Court of Appeal

Between

ADEBAYO ATOBATELE 2. ADEYEMI ATOBATELE APPELANT(S)

And

1. THE PROBATE REGISTRAR HIGH COURT OF LAGOS STATE 2. ADETOKUNBO OLANIYI ATOBATELE RESPONDENT(S)

RATIO

WHETHER OR NOT IT IS THE DUTY OF THE TRIAL COURT TO EVALUATE EVIDENCE AND ASCRIBE PROBATIVE VALUE TO IT

The fundamental principle of law settled by long line of decisions of this Court and the Apex Court is that a trial Court has a pivotal position when it comes to the evaluation of evidence placed before it and ascribing probative value to it. The Appellate Court will seldom interfere with this primary responsibility of the trial Court unless there was something in the record showing that the trial Court incorrectly carried out this duty.
However, where the evidence evaluated by the trial Court is only documentary, and there is a complaint that the trial Court incorrectly evaluated the evidence and reached a wrong decision such as in this case, this Court will be in as good a position as the trial Court to evaluate such documentary evidence in order to determine the complaint. The reason is that evaluation of documentary evidence placed before the Court as exhibits through affidavits of the parties do not require the watching of the demeanor of witnesses while they testify in order to determine their truthfulness. Documents have voices to speak, and they always speak for themselves. See Lafia L.G. V. Executive Govt. of Nasarawa State & Ors. 2012) LPELR-20602 (SC), Emeka V. Okoroafor & Ors. (2017) LPELR-41738 (SC) Skye Bank & Anor. V. Akinpelu (2010) LPELR-3073 (SC) and Ibrahim V. Abdallah & Ors. (2019) LPELR-48984 (SC) where the Supreme Court Per OKORO, J.S.C (Pp. 24-25, paras. B-A) held that:
“It is instructive to note that this case was commenced at the trial Court by way of originating summons wherein parties rely more on documentary evidence to proof their case rather than oral evidence. Indeed, this Court has variously upheld the credibility of documentary evidence over oral evidence, which would require that the witness is put through oath and examinations for the Court to deduce the truth in his testimony. Contents of a document on the other hand speak for itself. In the case of A-G. Rivers State v. A-G Bayelsa State (supra) this Court, per, Adekeye, J.S.C stated at page 153 as follows; “it is legally recognized by the Courts that documentary evidence, particularly archival materials confer credibility to historical facts. Documentary evidence is the best form of evidence in proof of a case….” PER ALIYU, J.C.A.

BALKISU BELLO ALIYU, J.C.A. (Delivering the leading Judgment): This appeal is against the ruling of the High Court of Lagos State, (trial Court) delivered on the 27th May 2014 by Hon. Justice A. M. Nicol Clay in respect of the 2nd Respondent’s application by way of a motion on notice filed in suit NO:ID/595M/2012 on the 16th January 2013.

The said suit was commenced via an originating summons filed on the 26th July 2012 and the parties to the suit were stated as Mr.Adetokunbo Atobatele (suing as the Administrator of the Estate of Mr. Obasola Atobatele (Deceased) And The Probate Registry of the High Court of Lagos State. By that summons, the Applicant submitted the following question for the determination of the trial Court:
“Whether the Applicant, being the sole surviving Administrator of the Estate of Mr. Obasola Atobatele (deceased), can apply to the Court to appoint Co-administrators to administer the Estate following the demise of Mrs. Lucinda Yejide Atobatele, the earlier co-administrator.”

Upon the determination of the question, the Applicant prayed the trial Court for the following four reliefs:
a) A

declaration that the Applicant, being the sole surviving administrator of the Estate of Mr. Obasola Atobatele (deceased), can apply to the Court to appoint Co-administrators to administer the Estate of Mr. Obasola Atobatele (deceased) following the demise of Mrs. Lucinda Yejide Atobatele.
b) AN ORDER directing the Probate Registrar to substitute Mrs. Lucinda Yejide Atobatele (deceased co-administrator) with Adeyemi Atobateke and Adebayo Atobatele as Co-administrators to the Estate of Mr. Obasola Atobatele (deceased).
c) AN ORDER directing the Probate Registrar to strike out the name of the deceased co-administrator Mrs. Lucinda Yejide Atobatele from the letter of Administration known as NO. PHC 135/2002 issued to the Estate of Mr. Obasola Atobatele (deceased).
d) AN ORDER directing the Probate Registrar to amend the letter of Administration known as PHC 135/2002 issued to the Estate of Mr. Obasola Atobatele (deceased) to reflect the names of the new Co-administration known a No. PHC 135/2002 issued to the Estate of Mr. Obasola Atobatele Adeyemi Atobatele and Mr. Adebayo Atobatele.

The originating summons was filed and signed by Mr. Kola

Kolade as the counsel for the applicant. It was supported by an affidavit sworn by the Applicant with attached documents in support of the above prayers. The Applicant signed the supporting affidavit as shown on pages 3 to 20 of the record of appeal.

The trial Court considered the affidavit and the written address of Mr. Kola Kolade Esq. for the applicant and delivered its judgment on the 3rd August 2012 granting all the prayers of the Applicant; thereby ordering the Lagos State Probate Registrar to remove and replace the name of Late Mrs. Lucinda Yejide Atobatele with the two Appellants and to amend the Letters of Administration No. PHC 135/2002 of 12th November 2002 to reflect the amendment.

The 2nd Respondent was the person named as the Applicant in the said originating summons referred to supra upon which the trial Court delivered the judgment of 3rd August 2012. After the said judgment, the 2nd Respondent filed an application by way of a motion on notice praying the trial Court for the following orders:
1. AN ORDER setting aside the decisions/orders made in this suit by this Honourable Court on the 3rd day of August 2012 in that the same

was obtained by fraud.
2. AN ORDER striking out this suit, which was wrongly and fraudulently instituted by an impostor in the name of the Applicant.

The Application was predicated on the following grounds:
i. This suit was instituted by an impostor in the name of the Applicant and without the knowledge or consent of the Applicant
ii. The Applicant Mr. Adetokumbo Olaniyi Atobatele is the only son of late Obasola Atobatele that bears the name ADETOKUNBO and is also an Administrator of the Estate of Chief Obasola Atobatele.
iii. Mr. Adetokunbo Olaniyi Atobatele does not know Kola Kolade Esq. the counsel who instituted this suit and did not engage his services nor instructed him to institute this dubious suit constituted as SUIT NO: ID/595M/2012
iv. The orders made in this suit by this Honourable Court were fraudulently procured by the impostor in the name of the Applicant.

The case of the 2nd Respondent before the lower Court as stated through his affidavits in support of the application was that his sister Ms. Lucinda Yejide Atobetele, Professor M. I. Jegede, B. O. Ogundipe and himself were appointed as the administrators of

his late father’s estate on the 11th February 1994 through suit No: H/349/93 (Coram, Humponu-Wusu, J.) But sometimes in September 2012, (19 years after their appointment), he saw a newspaper publication in which a certificate of additional assets in respect of his father’s estate was purportedly issued by the Probate Registry of the High Court of Lagos State, the 1st Respondent in this appeal. Upon conducting a search in the offices of the 1st Respondent, the 2nd Respondent claimed that he discovered two letters of administration in respect of his father’s estate dated on the 12th November 2002 and 17th August 2012, purportedly issued through suits Nos. PHC/135/2002 and PHC/135/2007. Upon further enquiry/petition to the 1st Respondent, its officers informed him through a letter dated 8th October 2012 that the said two letters of administration purportedly issued in respect of the estate were fake. However, that the certificate of additional assets was issued pursuant to Suit No: ID/595M/2012-Mr. Adetokunbo Atobatele and Probate Registry of High Court of Lagos State.

Upon further search in the registry of the trial Court, he said he

discovered that the said suit was instituted by one Kola Kolade Esq. of Kola Kolade & Co. of No. 32 Adegbola St. Anifowose Ikeja whom he did not know, nor did he instruct him to file the suit in his (2nd Respondent’s) name. He asserted that he never consented to, nor authorized the filing of the said suit in his name. He also said that he did not swear to the affidavit in support of the originating summons, as such, the judgment of the Court delivered on the 3rd August 2012 in the said suit was fraudulently obtained and should therefore be set aside.

The Appellants (as the respondents in the application) objected to same and filed counter affidavit dated 14th October 2013 and other further counter affidavits against the application. They admitted that indeed the Appellant, their late elder sister and the others were appointed administrators ad colligenda bono to the estate of their late father in 1994, but, the 2nd Respondent along with Ms. Lucinda Yejide Atobatele procured letter of the administration of their late father’s estate on the 12th November 2002, without the knowledge of the rest of the family including the Appellants. That upon

the discovery of this fact, the Appellants insisted that the administrators ad colligenda bono must give account for the administration of the estate during their stewardship and that in view of the death of late Ms. Lucinda Yejide Atobatele, the family directed that the Appellants, being sons of the Late Chief Atobatele from a different mother, must be added to the letter of administration dated 12th November 2002 procured by the 2nd Respondent. It was upon their addition that they demanded that the 2nd Respondent must also give account for the administration of the estate during his sole tenure. The Appellants claimed that it was in order for the 2nd Respondent and the other Administrators ad Colligenda Bona to avoid rendering account of their stewardship that the 2nd Respondent caused an advertorial in the Guardian Newspaper dated 19th September 2012 by which he attacked the personality of the Atobatele family and the Appellants for daring to demand for account of the administration of estate of their late father.

The Appellants further asserted that the 2nd Respondent was the only person who instituted suit No: ID/595M/2012 upon the direction of the

entire family of Emmanuel Osobukola Atobatele given at a meeting held on the 20th April 2012 in order to add the Appellants as co-administrators of the estate of their late father. That the order of the trial Court which the 2nd Respondent sought to be set aside by his application was actually obtained by himself and no other, having initiated, participated in the proceedings and supported the procurement of the very order he was seeking to set aside. That the 2nd Respondent instigated and commenced these proceedings by his application mala fide in order to forestall rendering account for his sole administrator of the of estate of their father.

The learned trial Judge after considering the affidavits of the parties and their respective Counsel written addresses held that:
“I am therefore in agreement with the submissions of the Learned Counsel to the Applicant that the suit was not instituted by the Applicant but by an impostor in the name of the Applicant without his knowledge and authority, it is therefore incompetent as the impostor lacks authority to institute same, the application is hereby granted as prayed.”

The trial

Court’s ruling effectively set aside its earlier judgment delivered on the 3rd August 2012 by Hon. Justice (Mrs.) L. A. F. Oluyemi, substituting the name of late Mrs. Yejide Atobatele with the Appellants and the order to the 1st Respondent to amend the letters of administration No: PHC 135/2002 of 12th November 2002, formerly issued in respect of the real and personal estate of late Obasola Atobatele.

The Appellants were aggrieved with the ruling of the trial Court and they filed notice of appeal against same on the 14th April 2014 relying on four grounds of appeal. The record of appeal was transmitted on the 22nd May 2015 but deemed properly transmitted on the 20th May 2019. The Appellants’ brief of argument, settled by Tunde Adeoye Esq. was filed on the 30th June 2016 and deemed properly filed and served on the same 20th May 2019. The learned counsel distilled and proposed three issues for the determination of the appeal as follows:
1. Whether in law the requirements of law were not met in the institution of Suit No: ID/595M/2012. (Ground one of appeal).
2. Whether or not Exhibit OA1 is not caught by the provisions of Section 83(3) of the Evidence Act 2011

so as to make it qualify as letter/document prepared in contemplation of litigation which are inadmissible in law and of no evidential value. (Ground 2 of appeal).
3. Whether in view of affidavit evidence by the contending parties, the Court was right in not resolving the conflicts created by the affidavit evidence before reaching its decision. (Ground 3 of appeal).

The 2nd Respondent’s Brief of argument was settled by his learned Counsel Okechukwu Tagboo Dike Esq. and filed on the 16th August 2016, but deemed properly filed and served on the 20th May 2019 Learned counsel proposed a sole issue for determination thus:
Whether the lower Court was right when after considering the affidavit evidence vis-à-vis the documentary evidence and held that the SUIT NO. ID/595M/2012 was not instituted by the 2nd Respondent thereby striking out the suit. (Grounds 1, 2 and 3 of the Notice of Appeal).

The Appeal came up for hearing on the 16th June 2020 and learned Counsel for the Appellant Tunde Adeoye Esq. leading I. T. Abdussalam Esq. adopted the Appellants’ brief and prayed the Court to allow the appeal and to

set aside the Ruling of the trial Court. Richard Abdullahi Esq. adopted the 2nd Respondent’s brief and urged the Court to dismiss the appeal and to affirm the trial Court’s decision. The 1st Respondent did not file a brief.

APPELLANTS’ SUBMISSIONS
In arguing the Appellant’s issue one, learned counsel referred to and reproduced paragraph 41 of the 1st Appellant’s counter-affidavit contained in pages 305 to 318 of the record of appeal and submitted that the facts therein showed that the 2nd Respondent surreptitiously and clandestinely participated in the institution of this suit only to turn around and flatly denied same. That it amounts to a mere denial for the 2nd Respondent, who was recorded as being present in the proceedings of the trial Court conducted on the 1st August 2012 that led to the judgment of the 3rd August 2012, especially as he did not challenge that days’ proceedings of the lower Court contained in pages 28 to 30 of the record of appeal. He relied on NNPC V. FAMFA OIL LTD (2012) ALL FWLR (pt. 635) 201 for support.

It was learned counsel’s further submissions that the 2nd Respondent did not

deny his signature on the originating summons copied at page 6 of the record of appeal and on the letter attached to exhibit 10 nor did he deny attending the meeting with the Appellants where he signed the summons and other documents commencing this suit. He argued that the 2nd Respondent has the onus to produce before the trial Court his authentic signature for the trial Court to compare with the disputed signature in order to arrive at a just decision. That in this case, the trial Court failed to compare the signature of the 2nd Respondent on the affidavit in support of the originating summons, the signature on the letter of attached to exhibit 10 with his signature that was signed the end of the meeting of 2nd April 2012, and by reason of this failure, it arrived at a wrong decision.

Learned Appellant’s counsel further argued that by his conduct in attending the proceedings in Court and driving out everyone from his house for the meeting between him and the Appellants, the 2nd Respondent is estopped from denying knowledge of the proceedings he instituted. The learned Counsel urged the Court to use the doctrine of estoppel by conduct to prevent

the 2nd Respondent from benefitting from his own wrong and to prevent injustice to the Appellants. He urged the Court to resolve issue one in their favour. He relied for support on the cases of A. G. Rivers State V. A. G. Akwa Ibom (2011) ALL FWLR (pt. 579) 1023, Alhaji Adekunle Teriba V. Ayoade Tiamiyu Adeyemo (2010) ALL FWLR (pt. 533) 1868 and Bureau of Public Enterprises V. Assurance Bank Plc & Ors. (2010) ALL FWLR (pt. 545) 249.

On the Appellants’ issue two, learned counsel submitted that the grouse of the Appellants under this issue is that on Exhibit OA1 (page 394 of the record of appeal) was made in anticipation of litigation because the 2nd Respondent’s initial application was filed on the 12th October 2012 with a supporting affidavit which did not mention anything about the letter denying authorship of the letter dated 15th January 2002 at the time. However, when the application was withdrawn and substituted with this one, that letter came up. He argued that the letter which was dated 18th October 2013 a year after the 2nd Respondent filed his withdrawn application, as such reliance on this letter (exhibit OA1) by the learned

trial Judge was improper in law because it was caught by the provisions of Section 83(3) of the Evidence Act 2011. He urged the Court to expunge the said exhibit OA1 from the record placing reliance is support on the cases of Samson Owie V. Solomon E. Ighiwi (2005) ALL FWLR (pt. 248) 248, Aminu V. Hassan & Ors. (2014) ALL FWLR (pt. 725) 205. He prayed the Court to resolve issue two in favour of the Appellants.

On the Appellants’ issue three, their contention is that there are material conflicts in the affidavit evidence before the trial Court. Therefore, it was wrong to proceed to set aside its earlier Judgment of 3rd August 2012 without resolving the conflicts in the affidavits of the parties. Learned Counsel itemized the area of conflict with regards to exhibit AO1, and exhibits E, B, B1 to B10 (pages 323 to 337 of the record of appeal. There was also dispute as to the authenticity of the signature of the 2nd Respondent, which the trial Court had the opportunity to resolve by comparing his signature on the affidavit in support of the originating summons with that on the data page of the 2nd Respondent’s international passport (exhibit

AA3). He argued that the disputed signature of the 2nd Respondent could only be resolved through either oral evidence or opinion evidence of a handwriting expert, which was not done by the trial Court thereby leaving the conflict unresolved. He also contended that the affidavits in support of the application were self-contradictory and yet the trial Court relied on them to grant the application.

Further contended that paragraph 41 of the Appellants’ counter-affidavit contained details using time, date circumstances leading to the institution of the suit which are denied by the 2nd Respondent, and yet the trial Court still did not call for oral evidence to resolve the conflict. He placed reliance on the position of the law that where there are documents annexed to the affidavit evidence of the parties, they can effectively be used to resolve conflict and the court would not call for oral evidence; but that in this case, the documents annexed to the affidavits of the parties could not be effectively used to resolve the conflict, and there was therefore the need to order for pleadings which the trial Court failed to do. This failure, according to

the learned counsel led the trial Court to arrive at the decision that inflicted injustice to the Appellants. He urged the Court to interfere with the ruling of the trial Court and to resolve issue three against the 2nd Respondent.

2ND RESPONDENT’S SUBMISSIONS.
In arguing his sole issue proposed for determination, the learned 2nd Respondent’s counsel submitted that the 2nd Respondent by this application challenged only the validity and legitimacy of the suit upon which the judgment of 3rd August 2012 was delivered and that the issue of legitimacy of the suit is intertwined with the jurisdiction of the court to determine the suit. He enumerated the reasons the 2nd
Respondent relied upon in his affidavits for denying knowledge of the suit filed before the trial Court, including the fact that he has never met nor instructed Kola Kolade Esq. to file the suit in his name and the letter the said counsel wrote confirming this fact. He submitted that the trial Court was right when it struck out the suit because it was invalid. He relied for support on the cases ofKida V. Ogunmola (2006) 13 NWLR (pt. 997) 377, A. C. B. V. Haston Nig. Ltd (1997) 8

NWLR (pt. 515) 110 at 128.

In Response to the Appellants’ argument that the 2nd Respondent did not deny his signatures on the originating summons, learned counsel submitted that indeed the 2nd Respondent emphatically denied signing the said originating summons and its supporting affidavit. He further submitted on the authority of the cases of Ndoma-Egba V. A. C. B. Plc (2005) 14 NWLR (pt. 944) 79 and Odudu V. Onyibe (2001) 13 NWLR (pt. 729) 140, that the Appellants bear the onus of establishing the genuineness of the signature on the affidavit in support of the originating summons commencing the suit.

In reply to the argument of the Appellants regarding the admissibility of exhibit AO1 being contrary to Section 83(3) of the Evidence Act, the learned counsel submitted that the trial Court was right to rely on that letter because it was not written by a person interested or a person who may be affected by the outcome of the proceedings. That the said exhibit AO1 being a letter written by one Lateef Owolabi from the law firm of Sofunde, Osakwe, Ogundipe & Belgore, and the firm itself cannot be termed as parties interested in the outcome of the

proceedings. Moreover, exhibit AO1 laid credence to the confirmation of the 1st Respondent that the letters of administration to which it applied were fake. He urged the Court to discountenance the argument of the Appellants; especially because the cases they relied upon in support of their issue two are not applicable to this suit. He relied in support of his argument on the cases of N. B. C. Plc V. Ubani (2014) 4 NWLR (pt. 1398) 421 at 459 and Ya’u V. Dikwa (2001) 8 NWLR (pt. 714) 127 at 153.

Learned Counsel further submitted that even assuming exhibit AO1 contravened Section 83 of the Evidence Act, exhibits AB & AB1 which is a letter written by Kola Kolade Esq. the counsel that filed the originating summons revealed that indeed, there was no existence of Client/Counsel relationship between him and the 2nd Respondent. He relied on the decision of this Court in Abiola V. Abacha (1997) 6 NWLR (pt. 509) 413 at 423 in support.

In response to the Appellants’ argument that in view of the conflicts in the affidavit of the parties, the trial Court ought to have called for oral evidence to resolve the conflict; the learned counsel argued

that the Appellants failed to indicate the conflicts in the affidavit evidence. But that even if there was such conflict the trial Judge was right to rely on the letter of Kola Kolade Esq. (exhibit AB) to resolve the conflict. He posited that this letter sufficiently supports the affidavit evidence of the 2nd Respondent. He relied on the cases of Nwosu V. Imo State Environmental Sanitation Authority (1990) 2 NWLR (pt. 135) 688 at 918 and National Hospital V. National Commission (2014) 11 NWLR (pt. 1418) 309 at 330 to the effect that conflict in affidavit evidence can be resolved through authentic documentary evidence that tilts the balance in favor of the affidavit of one of the parties. He posited that in this case, there was sufficient documentary evidence at the disposal of the trial Court and the learned trial Judge was right to rely on them in his decision. The Court was urged to dismiss this appeal and to affirm the decision of the trial Court.

DETERMINATION OF APPEAL
I have considered the grounds of this appeal, the record of appeal, and the respective briefs of the learned counsel. I am of the view that the issue proposed by the 2nd Respondent

adequately captured the complaint of the Appellants in their grounds of appeal in addition to its brevity. I therefore adopt same as my guide in the determination of this appeal.

RESOLUTION
The issue questioned the correctness of the decision of the learned trial Judge in granting the application of the 2nd Respondent with the resultant effect of setting aside its judgment of 3rd August 2012. This case was decided on affidavit evidence placed before the trial Court. The fundamental principle of law settled by long line of decisions of this Court and the Apex Court is that a trial Court has a pivotal position when it comes to the evaluation of evidence placed before it and ascribing probative value to it. The Appellate Court will seldom interfere with this primary responsibility of the trial Court unless there was something in the record showing that the trial Court incorrectly carried out this duty.
However, where the evidence evaluated by the trial Court is only documentary, and there is a complaint that the trial Court incorrectly evaluated the evidence and reached a wrong decision such as in this case, this Court will be in as good a position as

the trial Court to evaluate such documentary evidence in order to determine the complaint. The reason is that evaluation of documentary evidence placed before the Court as exhibits through affidavits of the parties do not require the watching of the demeanor of witnesses while they testify in order to determine their truthfulness. Documents have voices to speak, and they always speak for themselves. See Lafia L.G. V. Executive Govt. of Nasarawa State & Ors. 2012) LPELR-20602 (SC), Emeka V. Okoroafor & Ors. (2017) LPELR-41738 (SC) Skye Bank & Anor. V. Akinpelu (2010) LPELR-3073 (SC) and Ibrahim V. Abdallah & Ors. (2019) LPELR-48984 (SC) where the Supreme Court Per OKORO, J.S.C (Pp. 24-25, paras. B-A) held that:
“It is instructive to note that this case was commenced at the trial Court by way of originating summons wherein parties rely more on documentary evidence to proof their case rather than oral evidence. Indeed, this Court has variously upheld the credibility of documentary evidence over oral evidence, which would require that the witness is put through oath and examinations for the Court to deduce the truth in his testimony. Contents

of a document on the other hand speak for itself. In the case of A-G. Rivers State v. A-G Bayelsa State (supra) this Court, per, Adekeye, J.S.C stated at page 153 as follows; “it is legally recognized by the Courts that documentary evidence, particularly archival materials confer credibility to historical facts. Documentary evidence is the best form of evidence in proof of a case….”
See Attorney – General of Rivers State v. Attorney-General Bayelsa State (2013) 3 NWLR (pt 1340) p.123 at163; Ogologo v. Uche (1998) 4 NWLR (pt.572) 34 at 46 and Arije v. Arije & Ors (2018) LPELR-44193 (SC).

In this appeal, like the Appellants’ learned counsel stated in paragraph 4.01 of the Appellants’ brief, the contention of the 2nd Respondent before the trial Court was that he did not authorize the filing of the Originating Summons leading to the judgment of 3rd August 2012, by which the Appellants were ordered to replace the late Yejide Atobatele as administrators of their father’s estate. This is the dispute/issue in contention that was before the trial Court and in this appeal. The Appellants joined issue with the 2nd Respondent on this

issue in controversy in paragraph 32 of their counter affidavit (page 312 of the record) when they averred that:
That the applicant herein applied for, processed and was granted the letter of administration numbered PHC/135/2002 dated 12th November 2002 and has since the grant of the said letter and upon the death of Yejide Atobatele been acting as the sole administrator of our father’s estate until he further applied to the Honourable Court that the 2nd respondent and I be added as co-administrators. (Underlining supplied).

In order to resolve the issue whether or not the 2nd Respondent did in fact file the application that led to the judgment of 3rd August 2012, the first consideration are the processes filed. I have at the beginning of this Judgment alluded to the said originating summons filed before the trial Court commencing this suit and it was stated on the face of the originating summons that:
“This Summons was taken out by Kola Kolade Esq. of Kola Kolade & Co. 32, Adegbola Street Anifowoshe, Ikeja Lagos, Counsel to the above-named Applicant.”

The first logical action that comes to mind is to find out from

this counsel (Kola Kolade Esq.) how he came about the brief upon which he “took out” the originating summons in the name of the 2nd Respondent (named Applicant) as he stated clearly in the summons as reproduced supra.

The Appellants explained how the counsel came about the brief in their paragraphs 23 (i to iv) wherein they contended that it was the entire family of the Atobetele Family upon the discovery that the 2nd Respondent and late Lucinda Yejide Atobatele had procured letters of administration in respect of their father’s estate and in view of the death of Lucinda Yejide, that:
“…. the family unanimously decided that the Administrators ad Colligenda Bona of the Estate of Late Chief Obasola Atobatele MUST account for the administration of estate during their tenure and that Adeyemi Atobatele and I be added to replace Lucinda Yejide Atobatele (deceased) on the letter of Administration dated 12th November 2002 procured by Adetokunbo Olaniyi Atobatele”

From the above averments of the Appellants, the directive of the family to add them to the letter of administration procured in 2002 was issued to the

2nd Respondents to comply with and not to them (Appellants). Yet in paragraph 41(b), (c) and (d) of their counter affidavit sworn by the 1st Appellant, they stated the following facts:
(b) The 2nd Respondent herein and I approached Mr. Kola Kolade and explained our family’s decision to him for prompt assistance as the property left behind by our father are wasting away due to serious neglect upon which facts Mr. Kola Kolade demanded to sight our elder brother Adetokunbo Olaniyi Atobatele.
(c) Due to the schedule our elder brother Adetokunbo Olaniyi Atobatele, I elected and appealed to Mr. Kola Kolade to accompany us to Adetotokunbo Atobatele’s residence at No. 73 Oduduwa Crescent, GRA Ikeja, Lagos State in order to meet Adetokunbo Olaniyi Atobatele in person in company of the 2nd respondent herein and Adeleke Adeyabi, Saheed Agboluaje, Stephen Oguntuyi and Aramide Shobade.
(d) On getting to Adetokunbo Olaniyi Atobatele’s resident No. 73 Oduduwa crescent, GRA Ikeja Lagos State, Adetokunbo Olaniyi Atobatele decided that every other person that accompanied us to his resident should step outside and leave only the 2nd respondent

herein and I as he would only relate with us to the exclusion of all other person who is not an offspring of Obasola Atobatele and upon this instruction Mr. Kola Kolade and other persons that followed us stepped outside.”
(e)———————————————————————
(f) The 2nd respondent herein and I thereafter informed Adetokunbo Olaniyi Atobatele of the essence of bringing the people that accompanied us to his residence and particularly as it relates to the lawyer as which point Adetokunbo Olaniyi Atobatele authorized us to give the lawyer (Mr. Kola Kolade) go ahead and prepare the processes needed to be filed in court for his approval and also that the 2nd applicant (respondent?) herein and I should list all the properties of our father known to us so that he can give us a power of attorney in respect of them all, but the 2nd respondent herein and I objected to the option of power of attorney and we thereafter left his (Adetokunbo Olaniyi Atobatele) house to consult with the lawyer.
(g) I thereafter informed Mr. Kola Kolade of Adetokunbo Olaniyi Atobatele’s approval to prepare the process and upon

preparation of the said processes, I took same to Adetokunbo Olaniyi Atobatele in his residence at No. 73 Oduduwa Crescent , GRA Ikeja, Lagos State for his signature and I state that I went there in company of the 2nd Respondent herein and Stephene Oguntuyi Akinboye.”

What is discernible from the averments of the Appellants reproduced supra is that the services of Mr. Kola Kolade was employed by them to institute this suit seeking to add them to the letter of administration of the estate of their late father. In fact the 2nd Respondent did not have any discussion with the said Mr. Kolade on the institution of this suit, which was what the 2nd Respondent also stated in ground (iii) of his application before the trial Court and paragraph 10 (a) of the affidavit in support reproduced supra. His denial was further supported by exhibit AB and AB1 attached to the 2nd Respondent’s further affidavit filed on the 19th April 2013. See pages 229 to 231of the record of appeal. The said attached letter written by Mr. Kola Kolade, dated 26th March 2013 was addressed to the 2nd Respondent’s counsel, Mr. Olatunde Adejujuyigbe of Olatunde Adejuyigbe &

Co.in which he (Kolade Esq.)stated as follows:
“Sometimes last year, someone introduced Mr. Adebayo Atobatele to me while I also met Adeyemi Atobatele through a member of my church. They both approached me and narrated to me how the vast Estate left behind by their late father Obasola Atobatele was wasting due to years of neglect. I then asked if their father left a Will and they said no. However, that their two elderly ones Yejide Lucinda Atobatele (sister) late, and Adetokunbo Atobatele (brother) had earlier obtained a letter of Administration but that Yejide is now deceased leaving only Adetokunbo as the sole Administrator. It was further stated that the estate was wasting away because Adetokunbo is an international businessman and was not having enough time to manage the estate. (A copy of the L/A is herewith attached). They also brought a copy of the minutes of the Atobatele family meeting wherein Adebayo Atobatele and Adeyemi Atobatele were approved by the family to replace the deceased Administrator-Yejide. (The minute of the said meeting is hereby attached).
Sir at this point, I told them that under the law, it is Adetokunbo

Atobatele who can approach the Court for such order, I requested to see him. They promised to invite him to my office. Some days later, Adebayo Atobatele came back that Adetokunbo Atobatele was indisposed and cannot come and they appealed to me if I could come with them to his house to which I agreed. We went to No. 73 Oduduwa Crescent, G. R. A. Ikeja. They went inside and came out to inform the rest of us waiting outside that of about (6) six of us that went there, Adetokunbo wanted to see only the Atobateles among us and they went inside leaving me and others outside. I got furious and highly slighted more so when they had only approached me pro bono. I then left in anger and told them I was no longer interested in helping them.
Sir, later they came back that their brother said if they could convince me to prepare the court processes, he would sign them so they can become co-administrators as agreed at the family meeting and so they can do everything before their brother travels again. I then insisted on meeting or speaking with other family members. One Ishola Atobatele spoke with me that as a big uncle to all of them I have his consent and that of

other family members to go ahead.
Sir what eventually made me to agree to assisting them was the fact that they took me to some properties owned by their late father at Sango-Ota, Oshodi and Mende Maryland stating that they were already taken over by people due to long years of neglect coupled with the demolition notice issued by the Lagos State Government in respect of yet another property of their late father and in order for them not to lose the property, I agreed and prepared the court’s processes and gave them to take to their brother Adetokunbo to read through and make corrections and if he is satisfied he should sign so that they can file same as I insisted I would not go to his house and be insulted again.
Adebayo Atobatele took the documents away from my office to show to Adetokunbo and he returned with the documents signed and already filed in Court because I told him I would not follow him to Court to file without money. So, I do not know whether he went to Court to file same in company of Adetokunbo….” (underlining provided).

The above-reproduced letter of Mr. Kola Kolade in fact corroborated the averments of the

Appellants showing that the 2nd Respondent never saw nor issued any instruction for the institution of this suit in his name.

The learned counsel for the Appellants has argued that fraud was not proved and that the fact that the 2nd Respondent was recorded as being present in the two days proceedings of 1st and 3rd August 2012 is proof that the 2nd Respondent approved the institution of the suit. I think in view of the admission of Mr. Kolade in writing that he did not receive any instructions from the 2nd Respondent to file the suit ends the discussion in respect of consent to institute the suit.

The Appellants’ learned counsel also argued that the learned trial Judge wrongly relied on exhibit OA1 contained in page 394 of the record of appeal on the ground that it was written after the suit was instituted contrary to Section 83 (3) of the Evidence Act 2011. The said sub-section 3 of Section 83 provides that:
(3) Nothing in this section shall render admissible as evidence any statement made by a person interested at a time when proceedings were pending or anticipated involving a dispute as to any fact which the statement might tend to

establish
The above provisions have been interpreted to mean that documentary evidence made or procured by a party during the pendency of the proceeding and for the purpose of that action should not be admitted in evidence on the ground that such is tantamount to stealing a match from an opponent. See Olomo V. Ape (2013 LPELR-22327 (CA) and Anagbado V. Faruk (2018) LPELR-44909 (SC).

The said exhibit OA1 is copied at page 394 of the record of appeal, which the Appellants contended was made during the pendency of this suit. It is dated 14th January 2013 and was written by Lateef Owolabi for Sofunde, Osakwe, Ogundipe & Belgore law firm, the counsel that acted for late Lucinda Yejide Atobatele. The firm wrote to the 1st Respondent in respect of an application allegedly made to it by the firm for issuance of letter of administration PHC135/02 in respect of the Estate of Late Obasola Atobatele dated 15th January 2002. The letter read:
“RE: PHC 135/02 ESTATE OF LATE OBASOLA ATOBATELE
We write in respect of the above matter and further to the application for the grant of letter of administration dated January 15, 2002 purporting to

emanate from this firm (photocopy of the certified true copy is attached).
We write to disavow the said letter as at no time did we ever receive instructions from or act for Ms. Lucinda Yejide Atobatele regarding the application for the grant of letters of administration.
Accordingly, we state that the said letter of administration did not emanate from our firm, and we dissociate ourselves from the contents in its entirety.
Yours faithfully
Lateef Owolabi
FOR: SOFUNDE, OSAKWE, OGUNDIPE & BELGORE”

This letter (exhibit Ao1) was part of the documentary evidence relied upon by the 2nd Respondent before the trial Court, stating that he wrote a petition to the 1st Respondent regarding the letter of administration the Appellants alleged was procured by him and in which Ms. Lucinda Yejide and himself were appointed as administrators of their father’s estate. It was upon the basis of that letter of administration that the Appellants claimed that the 2nd Respondent was directed by the family to apply to add them as administrators to the said letter of 15th January 2002 since Lucinda Yejie is deceased. Therefore, the

clarification by the law firm of Sofunde Osakwe, Ogundipe & Belgore is necessary for the determination of the validity of the said letter of administration. It is pertinent to note that the law firm represented late Ms. Lucida Yejide Atobatele who was deceased as at the time the suit was instituted. The law firm that represented her while she was alive could not be said to be interested party in this suit any longer. Moreover, the law firm was explaining/giving evidence that they never wrote the application for the grant of letter of administration on behalf of the late Lucinda Atobatele while she was alive. I hold the view that in the circumstances, the letter (exhibit AO1) did not contravene Section 83(3) of the Evidence Act as posited by the Appellants. Their argument against this reliance on the said exhibit by the trial Court is discountenanced.

With regards to the complaint of the Appellant that the learned trial Judge ought to have called for oral evidence to resolve the conflicting affidavit evidence, I am in agreement with the 2nd Respondent’s counsel’s argument based on the correct principle of law to the effect that it is not

every conflict in affidavit evidence that will necessitate calling of oral evidence to resolve. I did not see any conflict in the affidavit evidence, regarding the dispute whether or not the 2nd Respondent filed the originating summons commencing this suit or not. Even assuming there was such conflict, the letter of Kola Kolade Esq. was enough to resolve same in favour of the 2nd Respondent. The argument of the learned Appellants’ counsel on this contention is therefore baseless and it is hereby discountenanced.

The learned Appellants’ counsel has also argued in paragraphs 4.05 of the Appellants’ brief that the 2nd Respondent “never denied that the signature on the affidavit in support of the originating summons on page 6 of the record of appeal was his own and neither did he deny the signature on letter attached as Exhibit on page 10. He did not deny attending the meeting of 20th April 2012 and the fact he signed at the end of the meeting.” However a further examination of the 2nd Respondent’s affidavit in support of his motion, specifically at pages 66 to 67 of the record, under the heading “Particulars of

fraud” in paragraphs 10(c), (e) (i) to (ii) and (f), he averred that:
“(c) I never appeared before the commissioner of Oath of the High Court of Lagos State Ikeja on the 27th day of July 2012 and did not depose to the Affidavit in support of the Originating Summons in this suit sworn on the said 27th day of July 2012 which bears my name as the deponent
(e) I was not at any meeting held by the purported heirs and beneficiaries of my Father’s Estate and did not execute the documents attached to the Affidavit accompanying the Originating Summons in this Suit, viz:
(i) The minutes of Meeting purportedly held on the 20th day of April 2012 by the heirs and beneficiaries
(ii) The letters of Appointment of Messrs. Adebayo Atobatele and Adeyemi Atobatele respectively as co-administrators of the Estate of Chief Obasola Atobatele.
(f) I did not sign any of the above documents said to have signed by me, all the signatures on them purported to be mine were forged.”

The 2nd Respondent in addition attached a copy of the data page of his international passport as exhibit AA2 (page 68 of the record of appeal) to show his

authentic signature. The argument of the learned Appellant’s counsel aforementioned, in which he stated that the 2nd Respondent never denied signing the documents and affidavit is incorrect and misleading and misleading. It is hereby discountenanced.

The Appellants’ learned counsel further argued that the 2nd Respondent was recorded by the lower Court to be present on the 2 dates that the originating summons came up for hearing before the trial Court, which the 2nd Respondent did not challenge. The proceedings of the trial Court of 1st August 2012 and 2nd August 2012 are copied at page 28 to 29 of the record of appeal and the Court recorded: “Applicant present”. If he did not file the suit, his presence in the Court for the proceedings is of no moment since the lawyer that was present, purportedly representing him admitted in writing that he never received any instruction to file the suit from the 2nd Respondent. Whether or not the 2nd Respondent was present in the court’s proceedings did not change this fact as well as his denial of signing the affidavit in support of the originating summons, or the fact that the claim that

summons was taken out by Kolade Esq. in his name was incorrect.

Upon all I have stated supra I am of the firm view that the trial Court was right to set aside its judgment delivered on the 3rd August 2012 based on the evidence before it that showed the said suit was not commenced by the 2nd Respondent in whose name it was instituted. I therefore resolve the sole issue against the Appellant. This Appeal fails and it is dismissed by me. The ruling of the High Court of Lagos State delivered on the 27th May 2014 in respect of the Motion on notice filed on the 16th January 2013 in Suit No: ID/595M/12 is affirmed by me. I shall order no cost since the parties are all members of the same family.

MOHAMMED LAWAL GARBA, J.C.A.: My learned brother Balkisu Bello Aliyu, JCA availed me of a draft of the lead judgment written in this appeal with which I am in complete agreement. The vital issue of whether the 2nd Respondent in fact gave instructions for the institution of the application/originating summons resulting in the judgment of 3rd August, 2012, which calls for decision by the Court in the appeal, has been comprehensively considered and

resolved in line with extant principle of law and my views thereon.

The letter from the Counsel who instituted the said application/summons in the name of 2nd Respondent, stating that he was not instructed by nor had the authority; express or implied, of the 2nd Respondent to do so provided the solid foundation for the Lower Court’s decision to set aside the judgment of 13th August, 2012 which was not only obtained by misrepresentation, but also through fraud. In the case of Igwe vs. Kalu 7 SC pt. II)236, Ogwuegbu, JSC stated that:-
“I shall state that the Court possesses inherent power to set its judgment in appropriate cases. Such cases are as follows: –
(i) When the judgment is obtained by fraud or deceit either in the court or of one or more of the parties.”
The cases of Flower vs. Llyod (1877) 6 CH D. 297, Alaka vs. Adekunle (1959) LLR, 76 and Olufunmise vs. Falana (1990) 3 NWLR (Pt. 136) 1 were referred to by learned LawLord for the position. See in addition Tomtec Nigeria Limited vs. F.H.A. (2009) 18 NWLR (Pt. 1173) 358 where Onnoghen, JSC restated that: –
“It is settled law that, Courts of record have the inherent

jurisdiction to set aside their judgment/decision/order, in appropriate cases or under certain circumstances which include:
(i) The judgment is Obtained by fraud a deceit either in the court or of one or more of the parties.”

I join in dismissing the appeal for being woefully lacking in merit.

There shall be costs of Three Hundred Thousand Naira (N300,000.00) in favour of the 2nd Respondent for the prosecution of the appeal to be paid by the Appellants.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I entirely concur in the reasoning and conclusion reached by my learned brother, Balkisu Bello Aliyu, J.C.A., in the thorough judgment which I had the benefit of reading in draft with nothing useful to add.

Appearances:

TUNDE ADEOYE ESQ. WITH HIM I. T. ABDUSSALAM ESQ. For Appellant(s)

RICHARD ABDULLAHI ESQ. FOR 2ND RESPONDENT

1ST RESPONDENT NOT REPRESENTED For Respondent(s)