MRS. FLORENCE TITILAYO SODEINDE v. MR. BABATUNDE ALLEN & ANOR
(2018)LCN/12298(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 18th day of December, 2018
CA/L/1253/15
RATIO
COURT AND PROCEDURE: ABUSE OF COURT PROCESSES
“It is trite law that an abuse of Court process is the improper use of the judicial process by a party in litigation. It may occur in various ways, such as instituting a multiplicity of action on the same subject between the same parties, it also occurs by same parties simultaneously in different Courts even though on different grounds, where two similar processes are used in respect of the exercise of the same right. See the cases of ASHEY AGWASIM & ANOR v DAVID OJICHIE & ANOR (2004) 18 NSCQR 359 at 36; IKINE & ORS v EDJERODE & ORS (2001) LPELR – 1479 (SC); OGBONMWAN v AGHIMIEN (2016) LPELR – 40806 (CA); ACB PLC v NWAIGWE & ORS [2011] 7 NWLR 380. Abuse of Court process simply means that the process of the Court has not been used bonafide and properly.”PER ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
COURT AND PROCEDURE: LOCUS STANDI
“Locus standi has been held to mean, the right to be heard in Court or Tribunal and to determine whether a litigant has this right to be heard, consideration is given to the totality of the averments in the statement of claim or depositions in the affidavit evidence to be able to ascertain that the litigant has disclosed sufficient interest in the matter. See CHUKWU v PDP & ORS (2016) LPELR 40962 (CA).” PER ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
COURT AND PROCEDURE: PRELIMINARY OBJECTION
“A Preliminary objection serves the purpose of terminating a case in limine on ground of incompetence. It is a pre-emptive strike at the appeal and its resolution will determine whether or not the appeal will be determined on the merit. See ETIM & ORS v ENYEAMA (2017) LPELR 43520 (CA); NUT TARABA STATE & ORS v HABU & ORS (2018) LPELR 44057 (SC). It is designed to short circuit an action by preliminary points of law to show that the action cannot be sustained.” PER ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
COURT AND PROCEDURE: THE EFFECT OF NON-JOINDER
“The law is settled that a person to be affected by a decision of the Court must be joined as a necessary party to the suit. See GREEN v GREEN [1987] 3 NWLR (PT 61) 480; O.K. CONTACT POINT v PROGRESS BANK [1999] 5 NWLR (PT 604) 631… The non-joinder of the Appellant is a breach of her right to fair hearing and it is fatal to the consideration of the 1st Respondent’s application. See the case of AZUBUIKE v PDP & ORS (Supra) where it was held that a judgment made against a person who was not a party to a suit is to no avail. See also the case of IFEANYI ASOGWA & ANOR v. UGWUEGEDE & ORS (2015) LPELR 40673 (CA) on the concept of fair hearing where it was held that: ‘The basic criteria for fair hearing are that a party must not be taken by surprise and both parties must be afforded equal opportunity to present their case before the Court or the arbiter.'” PER ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
INTERPRETATION: THE MEANING OF MISREPRESENTATION
“A misrepresentation has been held to mean a representation or statement that is false in substance and in fact. It is the act of making a misleading statement about something. See DUROWAIYE v UBA PLC (2014) LPELR ? 24309 (CA); AFEGBAI v A.G. EDO STATE [2001] 14 NWLR (PT 733) 425” PER ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
INTERPRETATION: THE MEANING OF FUNCTUS OFFICIO
“In the case of DINGYADI v INEC (NO. 2) [2011] 18 NWLR (PT. 1224) 154 at 186, PARAS D – F, the Supreme Court, per CHUKWUMA-ENEH, JSC, described the term functus officio: ‘… it connotes that a Court as this Court, having given its decision in a matter before it ceases to have the power to reopen the same matter all over again in the same proceedings.’ Functus officio is a latin maxim translated as: ‘having performed his or her task’ and it refers to one who has exercised his or her authority and brought to an end the ability to exercise same again. In effect, once a Court has delivered its decision on a matter, it ceases to be in charge or seized of the matter.” PER ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
JUSTICES
UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria
TOBI EBIOWEI Justice of The Court of Appeal of Nigeria
Between
MRS. FLORENCE TITILAYO SODEINDE Appellant(s)
AND
1. MR. BABATUNDE ALLEN
2. PROBATE REGISTRAR, HIGH COURT OF LAGOS STATE Respondent(s)
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A. (Delivering the Leading Judgment):
By an application dated 4/2/2009, the 1st Respondent applied to amend the order of the High Court of Lagos State per Justice A.R.A. SAHID that appointed three persons including the Appellant and the 1st Respondent as administrators of the estate of late Elizabeth Molara Allen/Okunzua who died intestate on the 15th of July, 1991 and without any biological child. The 1st Respondent applied to be appointed as the sole administrator of the deceased?s estate and same was granted on 4/6/2009 by the learned Justice A. J. COKER who was then seized of the matter.
The Appellant on becoming aware of the order of 4/6/2009, applied to have it set aside by an application dated 2/12/2010 and the 1st Respondent filed a preliminary objection challenging inter alia the locus standi of the Appellant.
The Court per Justice A.J. COKER then in a ruling delivered on 7/12/2011 upheld the preliminary objection of the 1st Respondent and held that the Appellant had no locus to have instituted the action and consequently refused to set aside the Order of 4/6/2009.
The Appellant has filed this appeal against the ruling of 7/12/2011 via a Notice of Appeal dated 16/10/2015 containing six grounds. Appellant also filed its brief on 29/5/2016 and deemed 30/6/2016. A reply brief was filed 11/5/2017 and deemed 23/5/2017. The Appellant formulated six issues for determination thus:
1. Whether the learned trial Judge was right in refusing to set aside her earlier order of 4/6/2009 when that order had been made in breach of Appellant?s right to fair hearing.
2. Whether the order of 4/6/2009 which had been made upon deceit and misrepresentation of material facts ought not to have been set aside by the learned trial Judge upon the application of the Appellant herein.
3. Whether the learned trial Judge was right in refusing to set aside her earlier order of 4/6/2009 which order was made based on a review of the merit of an earlier judgment of the same Court and was therefore without jurisdiction.
4. Whether the learned trial Judge was right in refusing to set aside her earlier order of 4/6/2009 when the application leading to the order was an abuse of Court process.
5. Whether the learned trial judge was right in refusing to set aside her earlier order of 4/6/2009 by which order the learned trial judge had, without jurisdiction, appointed a person sole administrator of an estate involving a minority interest.
6. Whether the learned trial judge was right in refusing to set aside her earlier order of 4/6/2009 on the ground that the Appellant herein as applicant had not shown the sufficient interest or locus standi she has in the subject matter.
The 1st Respondent filed its brief on 30/8/2016 and deemed 23/5/2017. They formulated five issues thus:
1. Whether the Appellant’s right to fair hearing was not secured before the order dated 4th June, 2009 was made by the learned trial Court per Coker J.
2. Whether considering the ruling dated 7th December 2011, the order dated 4/6/2009 was actually obtained by deceit.
3. Whether the trial Court per Coker J., had the jurisdiction to make the order dated 4/6/2009.
4. Whether the application of the 1st Respondent leading to the order of the trial Court dated 4/6/2009 was an abuse of Court process.
5. Whether there is any minority interest in the estate of the decease as alleged by the Appellant.
A preliminary objection was also incorporated into the 1st Respondent?s brief of argument.
PRELIMINARY OBJECTION
The objection is predicated on the fact that the Appellant lacks the locus standi to bring this appeal. The 1st Respondent submitted that the Appellant is not an aggrieved, interested or a necessary party to the proceedings at the lower Court and is therefore incompetent and incapable to file an appeal under Section 241 of the 1999 Constitution (as amended).
The 1st Respondent submitted that the Appellant lacks locus standi to apply for letters of administration or to institute any action on the estate of the deceased since she or her daughter are neither an adopted child nor have any sufficient interest in the estate of the deceased. He referred to the cases ofOWODUNNI v REG. TRUSTEES OF CCC [2000] 10 NWLR (PT 675) 315; ADISA v OYINWOLA [2006] 10 NWLR (PT 674) 16 at 200, PARAS B ? C; OREDOYIN v AROWOLO [1989] 4 NWLR (PT 114) 187, PARA C; A.G. LAGOS STATE v EKO HOTELS LTD [2006] 18 NWLR (PT 1011] 415 at 450, PARAS F – H; NUC v ALLI [2014] 3 NWLR (PT 1393) 33; WAMBAI v DONATUS [2014] 14 NWLR (PT 1427) 223.
He added that there was no evidence before the trial Court or this Court that any adoption process as required by the adoption law of Lagos State or the Child Rights Act ever took place as to warrant the Appellant or her daughter be an adopted child of the deceased and by that have an interest in the estate of the deceased. He referred to the case of OLAIYA v OLAIYA [2002] 8 NWLR (PT. 782) 652. 1st Respondent submitted that the 1st Plaintiff at the lower Court (now late G.O. Okunzua) on behalf of the Appellant (2nd Plaintiff) did not disclose any valid legal relationship or locus between the Appellant and the deceased and that the oral testimonies contradicted his depositions on oath. The 1st Respondent identified the purported contradictions and urged this Court to hold that his evidence is not credible. He referred to the case of AJOSE v FRN [2011] 6 NWLR (PT 1244) 465 at 468.
1st Respondent also submitted that if the Appellant?s daughter was adopted, the rights of the Appellant as a mother becomes extinguished and she cannot claim to have any interest in the estate of the deceased or on behalf of her own daughter. He referred to Section 12 of the Adoption Law of Lagos State.
1st Respondent submitted that the trial Court per A.R.A. SAHID J., failed to evaluate the affidavit of the 1st Plaintiff claiming that the Appellant has a right to institute the action. He urged this Court to intervene with the judgment of the lower Court on the premise that it fell into error in its evaluation of facts and failed to recognise that the Appellant lacks the locus standi to institute the action with the 1st Plaintiff. He referred to the cases of OJUKWU v OBASANJO; EMEZI v OSUAGWU & ORS (2005) 2 SC (PT 11) 128 and submitted that where a Plaintiff has been found not to have locus, the trial Court has no jurisdiction to entertain the claim and the proper order is for a striking out of the suit.
1st Respondent submitted that there is no evidence before the lower Court that the Appellant’s daughter (Modelle Okunzua) was adopted in accordance with the Yoruba native law and custom and that the Appellant has not sought the leave of this Court to bring in new evidence. He urged this Court to discountenance the Appellant’s argument on same since the Appellant did not believe in it and that hence its exhibition of Exhibit OK7 and OK8 which dealt with statutory process of adoption.
He concluded his submission by saying that the relationship between the Appellant and the deceased is at best a guardianship or foster relationship and not adoption as claimed by the Appellant. He urged the Court to uphold the preliminary objection and dismiss the appeal.
The Appellant in reply submitted that the issues raised by the 1st Respondent are issues which can only be properly canvassed by way of cross appeal and not preliminary objection. He submitted that though the issue of jurisdiction may be raised at any stage even for the first time on appeal, that the law is settled that a party who wishes to raise the issue of jurisdiction of a lower Court on appeal can only do so by filing a Notice of Appeal or cross appeal. He referred to the cases of OKONKWO v OKONKWO [2004] 5 NWLR (PT 865) 87 at 107; LAMBERT v NIGERIAN ARMY [2006] 7 NWLR (PT 980) 514 at 535.
He added that by the 1st Respondent own showing at pages 7 to 9 of his brief and paragraphs 7and 8 of his counter affidavit and the judgment per SAHID, J, at page 84 of the records, both parties joined issues at the trial Court on the interest of the Appellant in the subject matter of this suit. He submitted that issues having been joined and that the Judge having found that the Appellant has sufficient interest in the subject matter, the only way the 1st Respondent can challenge the sufficiency of the interest is by way of a valid Notice of Appeal against the judgment of the Judge (per SAHID, J). He referred to the case of ASOGWA v PDP (2012) LPELR 8575 (CA) 12 – 13; UDENWA & ANOR v UZODINMA & ANOR (2012) LPELR 7953 (CA) 15 – 16; EZEANAH v ATTAH (2004) 2 SC (PT 11) 75 at 91.
The Appellant submitted that the preliminary objection is an invitation to this Court to determine the substantive issue by way of an objection. He stated that the issue raised is a live issue in the substantive appeal. He referred to ground 6 of the Notice of Appeal and issue 6 in the Appellant’s brief of argument and that same is further confirmed by the 1st Respondent’s brief, which the Appellant contended merely adopted his argument in the preliminary objection into its issue 6. Appellant submitted that the parties and the Court are not allowed to delve into the substantive suit at the stage of preliminary objection. He cited the cases of NUC v ALLI & ANOR [2014] 3 NWLR (PT 1393) 33 at 78, PARA E; L.M. ERICSSON NIG LTD v AQUA OIL NIG LTD (2011) LPELR 8807 (CA) at 42.
In any event, the Appellant also submitted that a party will be held to have locus standi once he alleges in his originating process a right or interest in the subject matter of the suit and which has or is likely to be infringed regardless of the merit of the case. He referred to the cases of DISU v AJILOWURA [2006] 14 NWLR (PT. 1000) 783 at 801; ADETONA & ANOR v ZENITH INTERNATIONAL BANK PLC [2011] NWLR (PT. 1279) 727 at 648 ? 649; OWODUNNI v REGISTERED TRUSTEES OF CELESTIAL CHURCH OF CHRIST & ORS (2000) 6 SC (PT. 111) 60 and urged this Court to dismiss the objection as it is misconceived.
RESOLUTION
A Preliminary objection serves the purpose of terminating a case in limine on ground of incompetence. It is a pre-emptive strike at the appeal and its resolution will determine whether or not the appeal will be determined on the merit. See ETIM & ORS v ENYEAMA (2017) LPELR 43520 (CA); NUT TARABA STATE & ORS v HABU & ORS (2018) LPELR 44057 (SC).
It is designed to short circuit an action by preliminary points of law to show that the action cannot be sustained.
This Court will need to consider if the instant preliminary objection is sustainable based on the purpose of a preliminary objection enumerated above.
It can be seen on the face of the 1st Respondent?s preliminary objection, the grounds and arguments in support that the gravamen of the objection is the contention that the Appellant lacks the locus standi to commence the suit before the lower Court and in this appeal.
By the submissions of the 1st Respondent in this preliminary objection, by paragraphs 7 & 8 of the 1st Respondent’s counter affidavit at the lower Court and by the judgment per SAHID, J., at page 84 of the records, parties have joined issues at the trial Court on the interest of the Appellant in the subject matter of this suit.
Therefore, the raising and challenging of the same issue of the Appellant’s interest herein can only be properly canvassed by way of a Notice of Appeal or a Cross Appeal and not a preliminary objection. Issues having been joined and the lower Court having found that the Appellant has sufficient interest in the subject matter, the only way the 1st Respondent can challenge this is by way of a Notice of Appeal or a Cross Appeal against the judgment of the learned trial Judge (per SAHID, J). See the cases of ASOGWA v PDP (Supra); UDENWA & ANOR v UZODINMA & ANOR (Supra).
The law is settled that a finding of the lower Court can only be challenged on appeal and the decision remains valid until same is set aside. I therefore hold that the 1st Respondent’s preliminary objection challenging the interest of the Appellant in this case is misconceived. See the case of ASOGWA v PDP & ORS (Supra) where it was held that:
“This matter is not arising from any of the four grounds of appeal. And there is no cross appeal. It appears to have gone beyond the purview of a preliminary objection, which is usually an objection against some irregularity in the Court process, which if it succeeds, terminates the appeal in limine at that stage without the necessity of considering its merit.
I am in agreement with the submission of the Appellant that though the issue of jurisdiction may be raised at any stage even for the first time on appeal, a party who wishes to raise same on appeal can only do so by filing a Notice of Appeal or a Cross Appeal. See the cases of OKONKWO v OKONKWO (Supra); LAMBERT v NIGERIAN ARMY (Supra).
This preliminary objection is an invitation to this Court to determine a substantive issue by way of a preliminary objection. The issue of locus standi raised is a live issue in the substantive appeal. It is captured in ground 6 of the Notice of Appeal and issue 6 in the Appellant’s brief of argument and same is further confirmed by the 1st Respondent’s brief in which the 1st Respondent adopted his argument in the preliminary objection into its issue 6. Parties and the Court are not allowed to delve into a substantive issue at the preliminary stage. See the cases of L. M. ERICSSON NIG LTD v AQUA OIL NIG LTD (Supra); A.G FEDERATION v A.G ABIA STATE (2001) LPELR 24862 (SC); UGOKWE v CHEMCUS INDUSTRIES & SERVICES LTD & ORS (2018) LPELR 45562 (CA).
The resolving of the issues raised in the objection will certainly demand a review of the evidence from both parties to determine whether indeed the Appellant is qualified with interest to the deceased estate and by extension clothing herewith the right to sue on same and a preliminary objection is certainly not the right process for this.
The instant preliminary objection therefore fails and same is hereby dismissed. The appeal will now be considered on its merit.
MAIN APPEAL
The issues as formulated by the Appellant are apt for the determination of this appeal and it is hereby adopted.
ISSUE 1
Appellant’s counsel submitted that the order made by the lower Court per A.J. COKER, J on 4/6/2009 was made in breach of the Appellant’s right to fair hearing and based on misrepresentation of material facts and that it constituted a nullity which ought to have been set aside by the lower Court upon the application of the Appellant.
He submitted that the failure to join the Appellant as a party in the filing for the order or to serve her with the application process deprived her of fair hearing. That if the lower Court had intended service on the Appellant, he would have ordered that she be joined and that the processes be served either personally or by substituted service by posting at her last known address or publication in a newspaper. The Appellant contended that a person to be affected by a decision ought to be joined as a necessary party and that failure to so do renders the decision liable to be set aside at the instance of the party. He relied on OKUKUJE v AKWIDO (2001) 1 SC (PT. II) 80 at 89; AZUBUIKE v PDP & ORS [2014] 7 NWLR (PT. 1406) 292 at 314, PARAS B – C; amongst other cases.
The 1st Respondent in response submitted that the Appellant’s right to fair hearing was duly secured before the lower Court. He stated that the process was served at the last known address of the Appellant jointly used with the 1st Plaintiff at the lower Court and that when personal service became impossible, the lower Court granted his application for substituted service which was evidenced by the affidavit of service in the lower Court’s record.
1st Respondent submitted that once a proof of service is in the court’s file, the Court presumes that parties have been served.
He cited ASANGAENENG v UDOM (2007) 51 WRN 87 at 96; TUOYO H. LTD v NIGER-B. TRANS. CO. LTD (2007) 49 WRN 27; OMABUWA v OWHOFATSHO (2006) 37 WRN 70 at 98, PARAS 40 – 46, amongst other cases.
The Appellant in its reply brief submitted that the names or description of a party to be served with a Court process must be clearly endorsed on the face of it and that the omission of the Appellant’s name meant the Appellant was not considered a party and couldn?t have been served with the process.
RESOLUTION
The crux of this issue is whether or not the ruling/order of 4/6/2009 was granted without the Appellant being afforded the opportunity to be heard. The Appellant’s contention is that she was not joined and served with the application leading to the proceedings and order of 4/6/2009 and that it constituted a violation of her right to fair hearing.
It is clear from the record that the Appellant was the 2nd Plaintiff at the lower Court in the substantive proceedings leading to the judgment of SAHID, J., on 27/2/2001. She instituted the action jointly with the late 1st Plaintiff and they jointly retained the service of the same lawyer and used the same address throughout the proceedings.
However, the Appellant’s name was conspicuously missing from the application process. The contention of the 1st Respondent is that several unsuccessful attempts were made to effect personal service of the process on the Appellant at her last known address. And that substituted service was sought and obtained from the Court when personal service became impossible.
I have gone through the processes filed at the lower Court per COKER, J., and I must agree with the Appellant that nowhere was she made a party to the proceedings that led to the appointment of the 1st Respondent as the sole administrator. See page 124 of the record which contains the application and it is obvious that the parties named on the process are the 1st Respondent as the Applicant while the estate of late G.O. OKUNZUA and the Probate registry were the two Respondents named on the process.
The affidavit in support of the motion for substituted service of the application at page 140 of the record also clearly shows that the substituted service was made in respect of only the 1st Respondent in the application (the estate of late G.O. OKUNZUA).
Paragraphs 2 and 3 of the affidavit made it obvious thus:
2. That on the 9th day of February, 2009, whilst the applicant served as a pointer to enable me serve the 1st Respondent, I made frantic efforts to serve the service copies of the affidavit of urgency, exhibits, motion on notice, affidavit in support, exhibits attached and written address in support of the motion in this suit on the 1st Respondent at the last known address of late G.O. Okunzua i.e. NO. 7 Iyaloye Crescent, Onigbongbo, Maryland, Lagos to no avail as all my efforts proved abortive.
3. That on the said date, I did not meet the said G.O. Okunzua, but I met certain persons in front of the premises who told me that he died long ago and no longer in occupation of the premises, which premises had been let out to other tenants.
Further, the order of substituted service as well as the proof of service (see pages 145 & 146 of the record) shows that service was on the 1st Respondent estate of late G.O. OKUNZUA. See also page 494 where the lower Court asked about the Appellant, the response of the 1st Respondent shows that he had no intention of making the Appellant a party to the application. Part of the proceedings at the lower Court went thus:
COURT: why no inclusion of Titilayo Sodeinde for Notice OKUCHENMIYA: we feel she is a total stranger to the estate hence looking for her is like searching in the unknown.
When we serve the house we believe that it will get to her notice
The law is settled that a person to be affected by a decision of the Court must be joined as a necessary party to the suit. See GREEN v GREEN [1987] 3 NWLR (PT 61) 480; O.K. CONTACT POINT v PROGRESS BANK [1999] 5 NWLR (PT 604) 631.
The lower Court on becoming aware of the need to put the Appellant on notice ought to have ordered that she be joined as a party and the process be posted at her last known address. See the case of OYEYEMI & ORS v OWOEYE (2017) LPELR 41903 (SC) per AKA’AHS, JSC where it was held that when proper parties are not before the Court, the proper course the Court must follow is to direct that all persons interested or likely to be affected by the results are brought before it. See also MOZIE v MBAMALU [2006] 15 NWLR (PT 1003) 466.
The Appellant ought to have been joined as a party to the application even if the application would still have been served at the same last known address as the late Okunzua or by substituted means. This would have been permissible than completely leaving out her name from the application process.
I wonder why the 1st Respondent was hesitant about joining the Appellant who has been involved in the matter from the very beginning. The rationale for joining a party is to make him bound by the verdict of the Court and the matter cannot be completely settled or disposed off in the absence of the party who on the face of it has similar interest with the 1st Respondent. See MAFIANA & ANOR V ONWUHAI & ANOR (2018) LPELR ? 44847 (CA); BOSSOM VENTURES LTD v FCDA & ANOR (2012) LPELR 14356 (CA).
In resolving this issue, the decision of the apex Court in the case of OKOYE v NIGERIAN CONSTRUCTION & FURNITURE COMPANY LTD & ORS (1991) LPELR 2509 (SC) is worthy of note, where AKPATA, JSC held that:
if an action is improperly constituted because those who would have been made parties were not made and the case went to trial, an appeal Court would have a number of options depending on the facts of each case, namely:
1. To remit the case for re-trial and for those who ought to have been joined to be joined;
2. To strike out the action if a re-trial would necessitate extensive and/or complicated amendments to the writ and statement of claim to reflect the joinder;
3. To join for purposes of the appeal the person who ought to have been joined in the trial Court;
4. To hold that the person complaining that he ought to have been joined was not such a necessary party and that the non-joinder would not defeat the cause or matter.
Consequently, I am of the firm view in this case that it is important and necessary for the Appellant to have been made a party to the 1st Respondent’s application at the lower Court. The application could not have been properly decided in the absence of the Appellant and the exclusion or non-joinder is fatal to the 1st Respondent’s application in respect of the issue touching on the contention as to the interest of the Appellant.
The grant of the application in the absence of the Appellant cannot be seen to have served the interest of justice and achieved effective adjudication of the issues. I believe the Appellant should have been afforded the opportunity to be heard by the lower Court in the consideration of whether or not the 1st Respondent is entitled to be made the sole administrator.
It would have been a different scenario if the Appellant was indeed joined and served as a party and then failed to enter appearance. The 1st Respondent was quite aware of this and I cannot help but agree that his intention was to shut out the Appellant knowing fully well that she has interest in the subject matter from the time they were all made joint administrators of the estate.
The non-joinder of the Appellant is a breach of her right to fair hearing and it is fatal to the consideration of the 1st Respondent’s application. See the case of AZUBUIKE v PDP & ORS (Supra) where it was held that a judgment made against a person who was not a party to a suit is to no avail.
See also the case of IFEANYI ASOGWA & ANOR v. UGWUEGEDE & ORS (2015) LPELR 40673 (CA) on the concept of fair hearing where it was held that:
“The basic criteria for fair hearing are that a party must not be taken by surprise and both parties must be afforded equal opportunity to present their case before the Court or the arbiter.”
This issue is therefore resolved in favour of the Appellant.
ISSUE 2
Appellant submitted that the order of 4/6/2009 was based on deceit and misrepresentation of material facts by the 1st Respondent and that it is a nullity and liable to be set aside upon the application of the Appellant. He cited TOMTEC NIG LTD v FEDERAL HOUSING AUTHORITY (2009) 12 SC (PT II) 162 at 190; ALAO v AFRICAN CONTINENTAL BANK LTD (2000) 6 SC (PT. I) 27 at 39 & 57. He stated that the representation of the 1st Respondent was to deceive the lower Court into believing that he was the only interested and available person to act as an administrator of the estate. That the 1st Respondent?s representation was not only deceitful but was material and goes to the root of the application.
The 1st Respondent on the other hand submitted that the order of the Court was not obtained by deceit considering the later ruling of the Court on 7/12/2011. He submitted that before he could appeal against the judgment of SAHID, J.,the 1st Plaintiff passed and that he believed that the Appellant was nowhere to be found which is why he applied to amend to be the sole administrator and also based upon the fact that the Court per SAHID, J., held that the parties were at liberty to approach the Court if any difficulty arises upon the matter.
1st Respondent also submitted that by the ruling of 7/12/2011, the lower Court stated that it was upon her satisfaction that the Appellant had been served by virtue of proof of service before her that it granted the order of 4/6/2009. He added that a cursory look at pages 61 ? 68 of the record have the parties stated as G.O OKUNZUA & ANOR v BABATUNDE ALLEN & ANOR and that it did not mislead or confuse the affected parties. He also stated that for there to be a valid case of misrepresentation, the party complaining must not only show that there was a misrepresentation of certain facts, but must show that the Court relied on those facts and was actually misled.
The 1st Respondent submitted that the lower Court did not believe the averment that the Appellant was dead and that was why she stated that the process be served on her at the address.
Appellant replied that there were fraudulent misrepresentations of material facts which the 1st Respondent did not deny in his brief.
RESOLUTION
The contention of the Appellant here is that the order of 4/6/2009 had been made upon deceit and misrepresentation of material facts and that it ought to have been set aside by the lower Court upon the application of the Appellant.
A misrepresentation has been held to mean a representation or statement that is false in substance and in fact. It is the act of making a misleading statement about something. See DUROWAIYE v UBA PLC (2014) LPELR ? 24309 (CA); AFEGBAI v A.G. EDO STATE [2001] 14 NWLR (PT 733) 425.
It is clear from the affidavit in support of the 1st Respondent’s application dated 4/2/2009 at page 125 of the record. Particularly paragraphs 11, 12, 13, 19 & 20:
AFFIDAVIT IN SUPPORT OF MOTION ON NOTICE
11. That the 2nd Plaintiff does not have any legal capacity known to law in relation to the estate to apply for administration of same.
12. The name of the 2nd Plaintiff is Mrs. Titilayo Sodeinde nee Olaifa, she is the mother of Modelle Sodeinde.
13. That the 2nd Plaintiff was a house maid to my late sister during her lifetime and left the home at her death
19. That throughout the entire proceedings in the suit until the Court per Justice A.R.A. Sahid as he then was gave his ruling, the second (2nd) Plaintiff never came to Court as the Courts records wills how since she is aware that she has no scintilla of interest in the estate.
20. That the name of the 2nd Plaintiff i.e. Titilayo Sodeinde nee Olaifa was not even mentioned in the judgment.
And the proceedings before the trial Court on 18/3/2009 at page 494 of the record that the 1st Respondent represented to the lower Court that the Appellant had no interest in the estate and had not participated in the proceedings leading to the judgment by which she was appointed administrator along with the 1st Respondent herein. However, in her ruling delivered on 7/12/2011 particularly at page 527 of the record, the Court found that the Appellant appeared in the substantive proceedings on different occasions. It stated thus:
“the record of the Court shows that the 2nd Claimant/Applicant herein was recorded as having appeared in the suit before Sahid J’s judgment on:
i. 28/9/92
ii. 29/4/93
iii. 19th October, 1994
iv. 18th May, 1995
v. 4th September, 1996 where parties were recorded as present
The 1st Respondent equally represented to the lower Court that the Appellant was nowhere to be found when the Court expressed the need to have her joined and served with the application (see page 494 of the record) and thereby held out himself to be the only available person to administer the estate.
These representations are untrue and of material facts.
The contention of the 1st Respondent that the misrepresentation did not form the basis of the lower Court?s decision and that he believed that the Appellant was nowhere to be found does not take away the fact that the 1st Respondent made representations capable of misleading.
In determining whether there was a misrepresentation, the knowledge, belief or state of mind of the person making the statement is irrelevant and does not change the fact that a misrepresentation was made. See AFEGBAI v A.G. EDO STATE (Supra).
These misrepresentations are material and the argument of the 1st Respondent that the Court did not base her decision on the representations is of no momentum here. The lower Court ought to have considered same when the Appellant brought the application to set aside the order of 4/6/2009.
In any event, I do not agree that the lower Court was not influenced by the misrepresentation of the 1st Respondent. If indeed the Court did not believe that the Appellant was missing or nowhere to be found, she would have directed that the Appellant be joined as a party to the application. Justice would have been seen as done.
The misrepresentation is therefore a good ground for the lower Court to set aside the order and give the Appellant an opportunity to be heard. The law is settled that a judgment or order of Court obtained by deceit or misrepresentation of material facts is a nullity and liable to be set aside. See the case of TOMTEC NIG LTD v FEDERAL HOUSING AUTHORITY (Supra).
I am therefore of the view that the order of 4/6/2009 had been made upon misrepresentation of material facts and same ought to have been set aside by the lower Court upon the application of the Appellant herein.
This issue is therefore resolved in favour of the Appellant.
ISSUE 3
The Appellant on the issue of whether the Court had the jurisdiction to make the order of 4/6/2009 stated that the lower Court was functus officio and therefore acted without jurisdiction. He submitted that the affidavit in support of the application leading to the order of 4/6/2009 was based on the same set of fact relied upon in the proceeding leading to the judgment of SAHID, J., and that the Judge had no jurisdiction to reserve to himself or any Judge of coordinate jurisdiction the power to review or alter the judgment. He referred to DINGYADI & ANOR v INEC & ORS (NO. 3) (2011) 4 SC (PT. I) at 45; FIRST BANK OF NIG PLC v T.S.A INDUSTRIES LTD (2010) 4 ? 7 SC (PT 1) 242 at 293; amongst other cases.
The 1st Respondent in response submitted that the order was not a review but an amendment and that if the Appellant was not satisfied with the pronouncement of the lower Court about applying in case of difficulty, he should have appealed same. He citedWAZIRI v ALI (2009) 4 NWLR (PT. 1130) 178; CHUKWUNTA v CHUKWU (1953) 14 WACA 341.
He added that probate matters are not the same with those obtained in civil cases. That a grant can be reviewed if the need arises. He referred to Order 57 Rule 19 of the High Court of Lagos State (Civil Procedure) Rules 2012 which is in pari material with Order 55 Rule 70 of the 2004 rules.
1st Respondent submitted that the import of Order 55 Rule 70 of the rules is that in appropriate circumstance, a grant whether made as a judgment or order of Court can be validly amended by the same Court.
In reply, the Appellant submitted that he is not challenging the validity of the judgment of SAHID, J., but rather the contention is that the lower Court COKER, J or any other Court of coordinate jurisdiction cannot derive any jurisdiction to review the merit of the judgment having become functus officio. The Appellant submitted that the reading of the entire provisions of Order 55 shows that it relates only to Probate or Letters of Administration and not a judgment of the Court.
RESOLUTION
In the case of DINGYADI v INEC (NO. 2) [2011] 18 NWLR (PT. 1224) 154 at 186, PARAS D – F, the Supreme Court, per CHUKWUMA-ENEH, JSC, described the term functus officio:
“… it connotes that a Court as this Court, having given its decision in a matter before it ceases to have the power to reopen the same matter all over again in the same proceedings.”
Functus officio is a latin maxim translated as: ‘having performed his or her task’ and it refers to one who has exercised his or her authority and brought to an end the ability to exercise same again. In effect, once a Court has delivered its decision on a matter, it ceases to be in charge or seized of the matter.
The issue here is not challenging the validity of the judgment of SAHID, J., but rather the contention is that the lower Court COKER, J or any other Court of coordinate jurisdiction cannot derive any jurisdiction to review the merit of the judgment having become functus officio.
There is no denying the fact that the affidavit in support of the application leading to the order of 4/6/2009 was based off the same set of fact relied upon in the proceeding leading to the judgment of SAHID, J.
Contrary to the contention of the 1st Respondent, the intent of the provisions of Order 57 Rule 19 of the High Court of Lagos State (Civil Procedure) Rules 2012 which is in pari material with Order 55 Rule 70 of the 2004 rules relates only to Probate or Letters of Administration and not a judgment of the Court.
The power of a Court to set aside its own judgment in appropriate circumstances does not extend to reviewing such judgment of the Court save for clerical slips and omission. Such judgment of the Court can only be amended or reversed by way of an appeal. Which is the function and exclusive preserve of the appellate Court. See the cases ofBERO v OMOTOSHO (2008) LPELR – 8335 (CA); SHANU v AFRIBANK NIG PLC [2002] 17 NWLR (PT. 795) 185; AGBASO v OHAKIM & ORS (2011) LPELR ? 8812 (CA).
The lower Court therefore had no jurisdiction to reserve to himself or any Judge of coordinate jurisdiction the power to review or alter a matter already concluded. See the case of FIRST BANK OF NIG PLC v T.S.A INDUSTRIES LTD (2010) 4 – 7 SC (PT. 1) 242 at 293.
The learned trial Judge was therefore in error for refusing to set aside her earlier order of 4/6/2009 which order was based on a review of the merit of an earlier judgment of the same Court and was therefore without jurisdiction.
This issue is resolved in favour of the Appellant.
ISSUE 4
The Appellant on its issue 4 submitted that the 1st Respondent?s application leading to the order of 4/6/2009 constitutes an abuse of Court process and goes to the root of judicial proceedings and that it can be raised at anytime and even by the Court. He cited DINGYADI & ANOR v INEC & 2 ORS (2010) 4 – 7 SC (PT I) 76 at 133; OGBORU & ANOR v UDUAGHAN & ORS (2013) 5 – 6 SC (PT II) 145 at 175; amongst other cases.
The 1st Respondent in response submitted that there is no iota of abuse in the process of the 1st Respondent. That same was filed, argued and granted in due conformity with the relevant rules of the Court. He submitted that the 1st Respondent perceived that the difficulty envisaged by the lower Court has arisen and so he applied to the Court to amend the administrators.
RESOLUTION
The issue here has to do with whether or not the application of the Respondent leading to the order of 4/6/2009 constitutes an abuse of Court process.
It is trite law that an abuse of Court process is the improper use of the judicial process by a party in litigation. It may occur in various ways, such as instituting a multiplicity of action on the same subject between the same parties, it also occurs by same parties simultaneously in different Courts even though on different grounds, where two similar processes are used in respect of the exercise of the same right. See the cases of ASHEY AGWASIM & ANOR v DAVID OJICHIE & ANOR (2004) 18 NSCQR 359 at 36; IKINE & ORS v EDJERODE & ORS (2001) LPELR – 1479 (SC); OGBONMWAN v AGHIMIEN (2016) LPELR – 40806 (CA); ACB PLC v NWAIGWE & ORS [2011] 7 NWLR 380. Abuse of Court process simply means that the process of the Court has not been used bonafide and properly.
Flowing from issue 3, and having found that the 1st Respondent?s application was a re-litigation and review of an already concluded matter and judgment of the lower Court, there is no gain saying that the application amounts to an abuse of Court process and I so hold.?
The process of granting the application has resulted in a multiplicity of action by the same parties in respect of the same subject matter and it is prima facie vexatious and improper to the efficient and effective administration of justice.
The proper or next step for the 1st Respondent being dissatisfied with the resolution of the subject matter and the making of the three parties as joint administrators of the estate of the deceased is to go on appeal and not to file an application to the same Court on an already decided matter. This would have been the next proper process to indeed prove that the Appellant has no locus or interest in the subject matter of the case as the lower Court has become functus officio. It is the appropriate forum for the 1st Respondent to prove that the lower Court did not properly evaluate the totality of the evidence before it.
I therefore resolve this issue in favour of the Appellant.
ISSUE 5
On whether there is minority interest in the estate of the deceased, the Appellant submitted that the lower Court had no jurisdiction to appoint any individual as sole administrator of an estate involving a minority interest and that the lower Court did not establish absence of minority interest before granting the order. He referred to Section 24(1) of the Administration of Estate Law Lagos State, 2013.
He submitted that Modelle Okunzua was a minor as at the date of the order and is one of the beneficiaries of the estate. He added that she was adopted in accordance with the Yoruba native law and custom being the law of the marriage between her adopted parents and that the marriage was duly acknowledged by the lower Court per SAHID, J.
The Appellant submitted that the statute in this case imposes a duty on the learned trial judge to establish absence of minority interest before proceeding to appoint a sole administrator and that failure to so do goes to the root of the jurisdiction. He relied on CORPORATE IDEAL INSURANCE LTD v AJAOKUTA STEEL CO. LTD & ORS [2014] 7 NWLR (PT. 1405) 165 at 199 – 200; amongst other cases.
The 1st Respondent on the other hand submitted that there is no minority interest involved and that the Appellant is seeking to modify the facts before the lower Court by arguing for the first time on appeal without leave that her daughter was adopted under the Yoruba custom. He submitted, relying on the Adoption law that there was no adoption in the first place. That their procedure of adoption if actually taken was illegal and in violation of the relevant Adoption law. He relied on OLANIYAN v OYEWOLE (2008) 8 WRN 86 at 97, PARAS 19 – 22; OLAIYA v OLAIYA [2002] 8 NWLR (PT. 782) 652; OLANIYAN v OYEWOLE (Supra); AMAECHI v INEC (2008) 10 WRN 164.
The 1st Respondent urged this Court to hold that there was no adoption of the Appellant or her daughter and consequently find that there was no minority interest.
The Appellant submitted in reply that the issue of adoption having been submitted to the trial Court before SAHID, J, any decision or lack thereof can only be challenged by way of a Notice of Appeal. He referred to ASOGWA v PDP (Supra); UDENWA & ANOR v UZODINMA & ANOR (Supra); amongst others. He added that it is nowhere stated in the lead judgment in the case of OLAIYA v OLAIYA that adoption can only be under the statute or can only be proved in a particular way. Appellant submitted relying on Section 26 of the High Court Law, Cap H3, Laws of Lagos State, 2003 that the native law and custom is part of the Laws of Lagos State and that the Adoption Law of Lagos State does not exclude adoption under native custom. He relied on the book by E.I. Nwogugu on Family Law in Nigeria, 3rd Edition, pages 343 – 345.
Appellant submitted that even if the adoption of the Appellant and Modelle Okunzua is inchoate under the statute, they cannot be deprived of adoption under any other applicable law whether they expressly relied on such law or not.
RESOLUTION
This issue revolves around whether the lower Court was right in refusing to set aside her earlier order of 4/6/2009 by which order the learned trial judge had appointed a person sole administrator of an estate involving a minor.
Issues have been joined by the parties in the proceedings before the lower Court per SAHID, J., on the adoption of the Appellant and the child – Modelle Okunzua. See paragraphs 6 & 7 of the affidavit in support of the originating summons (see page 3 of the record), paragraphs 8 – 11 of the 1st Respondent’s affidavit setting forth interest (page 6 of the record) as well as paragraphs 7 & 8 of his counter affidavit to the originating summons (page 40).
Paragraphs 6 & 7 of the affidavit in support of the originating summons:
6. That late Dr. (Mrs) Elizabeth Okunzua and I had no natural children of our own but later adopted into the family the 2nd Plaintiff then Titilayo Olaifa in 1975 who had since then lived with my family until her marriage on 22/12/89 in her present name of Mrs. Titilayo Sodeinde.
7. That on the birth of a daughter to the said 2nd Plaintiff she and her husband voluntarily gave their daughter namely Modelle Okunzua in adoption to the family of the 1st Plaintiff.?
Paragraphs 8 – 11 of the 1st Respondent?s affidavit setting forth interest:
8.That I have never ever been informed by anybody nor my parents during their lifetime that Dr. G.O. Okunzua the so-called high parapsychologist is married to the deceased.
9. That the deceased throughout her lifetime had no child of her own nor did she adopt any child during her lifetime
10. That the Respondent sometime started living in the premises of the late Dr. (Miss) Elizabeth Molara Allen when the former became a devotee and disciple of G.O. Okunzua.
11. That Dr. G.O. Okunzua seized the opportunity of the death of the said Dr. E.M. Allen and used threats of harm from his devotees and voodoo priests to prevent any legitimate relation of the deceased to come near.
Paragraphs 7 & 8 of 1st Respondent’s counter affidavit to the originating summons:
7. That paragraph 6 is false in all respects, the deceased Dr. (Miss) Elizabeth M. Allen never adopted any child in her lifetime. Any reference to Titilayo Olaifa as an adopted child of Dr. (Miss) E.M. Allen is false and a distortion of fact.
8. That paragraph 7 is false in its entirety. At no recorded time did Dr. (Miss) Elizabeth M. Allen adopt any child not even Modelle who is a natural child of G.O. Okunzua born out of a promiscuous relationship with Titilayo Olaifa.?
It was on the basis of these facts that the lower Court concluded in its decision at pages 84 to 85 of the record that the Appellant has sufficient interest in the estate of the deceased.
This Court will therefore not dwell or delve into the issue as same has been submitted to the jurisdiction of the lower Court per SAHID, J, and the decision of which is not a focal point in this appeal.
The decision can only be validly challenged by way of a Notice of Appeal. See the previously cited cases of ASOGWA v PDP (Supra); UDENWA & ANOR v UZODINMA & ANOR (Supra).
This issue is therefore resolved in favour of the Appellant.
ISSUE 6
The Appellant on the last issue submitted that the lower Court was in grave error when she refused to set aside her order of 4/6/2009 for lack of locus standi. He submitted that the effect of the judgment of SAHID, J was to confirm the Appellant’s right in the estate. He added that the Appellant will be held to have locus once he alleges a right or interest in the subject matter of the suit which has or is likely to be infringed. He relied on DISU v AJILOWURA [2006] 14 NWLR (PT 1000) 783 at 801; ADETONA & ANOR v ZENITH INT BANK PLC [2011] NWLR (PT. 1279) 727 at 648 ? 649; OWODUNNI v REGISTERED TRUSTEES OF CELESTIAL CHURCH OF CHRIST & ORS (Supra).
The 1st Respondent in response to this submission of the Appellant adopted his arguments in his preliminary objection and urged this Court to find that the Appellant lacked the locus to have brought this action. He relied on KATE ENT. LTD v DAEWOO NIG LTD (Supra).
Appellant in reply submitted that the 1st Respondent’s argument in respect of the preliminary objection adopted as his argument in respect of issue 6 does not address the issue in this appeal. He submitted that the locus of the Appellant to institute the suit at the High Court is not an issue in this appeal as there is no ground of appeal in respect of it. He cited IBATOR v BARAKURO (2007) 4 SC (PT. I) 1 at 10; UTB NIG LTD v AJAGBULE (2005) LPELR – 7563 (CA) at 27. He added that ground 6 and the issue formulated thereon relates only to the decision of COKER, J that the order cannot be set aside at the instance of the Appellant.
RESOLUTION
The first port of call in the resolution of this issue is to establish the fact that the locus of the Appellant to institute the suit at the Lagos State High Court (per SAHID, J) is not an issue in this appeal as there is no ground of appeal in respect of same. Ground 6 from which this issue flows relates to the dissatisfaction with the ruling of the learned trial Judge COKER, J., that the order of 4/6/2009 cannot be set aside.
The argument of the 1st Respondent on this issue 6 is that the 1st Plaintiff at the lower Court (now late G.O. Okunzua) on behalf of the Appellant (2nd Plaintiff) did not disclose any valid legal relationship or locus between the Appellant and the deceased and that the oral testimonies contradicted his depositions on oath. The 1st Respondent identified the purported contradictions and urged this Court to hold that his evidence is not credible. 1st Respondent also submitted that the trial court per SAHID J., failed to evaluate the affidavit of the 1st Plaintiff claiming that the Appellant has a right to institute the action. He urged this Court to intervene with the judgment of the lower Court on the premise that it fell into error in its evaluation of facts and failed to recognise that the Appellant lacks the locus standi to institute the action with the 1st Plaintiff.
Clearly, all these argument is in relation to the proceedings and decision of the lower Court per SAHID, J which is not the focal point of this appeal or issue. This Court will have no choice than to discountenance any argument that is not based on the grounds of appeal before this Court. It is trite that it is not permissible to canvass argument on issue having no bearing with any of the grounds of appeal as such will become irrelevant and go to no issue.
See the cases of SKYE BANK NIG PLC v SEPH INVESTMENT LTD & ORS (2016) LPELR 40296 (CA); IYEN v FRN (2009) LPELR 8208 (CA); BRIGGS v C.L.O.R.S.N [2005] 12 NWLR (PT 938) 59.
Until the decision of the learned trial Judge – SAHID, J., is appealed against and same is set aside, the decision remains valid and subsisting. Consequently, this Court is aligned with the fact that the effect of the judgment of SAHID, J., was to confirm the Appellant’s right in the deceased’s estate.
Locus standi has been held to mean, the right to be heard in Court or Tribunal and to determine whether a litigant has this right to be heard, consideration is given to the totality of the averments in the statement of claim or depositions in the affidavit evidence to be able to ascertain that the litigant has disclosed sufficient interest in the matter. See CHUKWU v PDP & ORS (2016) LPELR 40962 (CA).
An objection to a litigant’s locus attacks the competence to sue as to whether he has any interest to protect. A litigant shall have the standing to sue and sustain an action if he is able to show that his civil rights and obligations have been or are in danger of being infringed. As held in the case of SADIQ v SULEIMAN (2015) LPELR ? 26003 (CA), there must be a nexus between the claimant and the disclosed cause of action concerning his rights or obligations. This Court went further to hold that in determining whether a party has locus, the chances that the action may not succeed is an irrelevant consideration.
Paragraphs 1 – 10 of the Appellant’s affidavit dated 2/12/2010 in support of the motion to set aside the order of 4/6/2009 is reproduced thus:
1. That I am the deponent herein
2. That I am one of the claimants in this suit
3. That I know as a fact that the 1st Claimant in this suit is now deceased
4. That by virtue of my position, I am conversant with all the facts of this suit
5. That I and the 1st Claimant in this suit filed the suit against the defendant/respondent wherein the honourable court gave a ruling/judgment in favour of the claimants and the defendant/respondent. The ruling/judgment was delivered by Honourable Justice A.R.A. SAHID – J and dated February 27, 2001. The said ruling is hereby attached and marked Exhibit ‘A’
6. That I know as a fact that looking at the content of the ruling/judgment of the honourable Court, it is I and the late G.O. Okonzua as well as the defendant/respondent that have the powers and rights to administer the estate of late (Dr) Mrs. Elizabeth Okonzua also known as Elizabeth Allen.
7. That I have been around all these years. I did not travel anywhere and/or out of the country. I am alive and not dead.
8. That recently it came to my notice that the defendant/respondent (Mr. Babatunde Allen) who is by the ruling/judgment of the honourable Court dated February 27, 2001, a co-administrator to the estate of late (Dr) Elizabeth Okonzua also known as Elizabeth Allen filed a motion to be made a sole administrator of late (Dr) Elizabeth Okonzua’s estates.
9. That paragraph 11 of the supporting affidavit to the defendant/respondent (Babatunde Allen) motion dated August 4, 2008 is to the effect that I am unknown, non-existing and either alive or dead
10. That I know as a fact that the honourable Court was deceived in making the order in respect of the motion on notice dated August 4, 2008 in favour of the defendant/respondent (Babatunde Allen) as the sole administrator of the estate of late (Dr) Elizabeth Okonzua also known as Elizabeth Allen.
Upon a careful scrutiny of the Appellant?s affidavit in support of the motion to set aside the order of 4/6/2009, I am of the firm view that the Appellant has disclosed sufficient interest to sustain this case.
This issue is therefore resolved in favour of the Appellant.
Having resolved all the issues in this appeal in favour of the Appellant and against the 1st Respondent, this appeal succeeds and is accordingly allowed for being meritorious. The order and the ruling of the High Court of Lagos State, per A.J. COKER, J., delivered on 4/6/2009 and 7/12/2011 respectively is accordingly set aside. No order as to costs.
UGOCHUKWU ANTHONY OGAKWU, J.C.A.: I entirely agree with, and do not desire to add to the decision of my learned brother, Abimbola Osarugue Obaseki-Adejumo, JCA, which I was privileged to read in draft. I adopt the entire decision as mine, with nothing more to add.
TOBI EBIOWEI J.C.A. I have read in draft judgment of my learned brother, ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, JCA. He has dealt with the relevant issues in this appeal comprehensively. I find the appeal to be meritorious and it is hereby allowed. I abide by the consequential order(s) made therein.
Appearances:
L.O. Alimi with him, M.O. Sheebi For Appellant(s)
Chris OkaforFor Respondent(s)
