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AFONJA v. ASHOROBI (2022)

AFONJA v. ASHOROBI

(2022)LCN/16075(CA)

In The Court Of Appeal

(ILORIN JUDICIAL DIVISION)

On Thursday, April 14, 2022

CA/IL/145/2019

Before Our Lordships:

Uzo Ifeyinwa Ndukwe-Anyanwu Justice of the Court of Appeal

Isaiah Olufemi Akeju Justice of the Court of Appeal

Kenneth Ikechukwu Amadi Justice of the Court of Appeal

Between

MR. IBRAHIM AFONJA APPELANT(S)

And

ALHAJA MUINAT ASHOROBI (Beneficiary Of The Estate Of Alhaja Latifatu Odee Sadiku) RESPONDENT(S)

 

RATIO

THE POSITION OF LAW ON AN APPLICATION TO SET ASIDE FOR IRREGULARITY OF ANY PROCEEDINGS

Where in beginning or purporting to begin any proceedings, or at any stage in the course of or in connection with any proceedings, there has, by reason of anything done or left undone, been a failure to comply with requirements of these Rules whether in respect of time, place, manner, form or content or in any other respect, the failure may be treated as an irregularity and if so treated, will not nullify the proceedings, or any document, judgment or order therein.
Also Order 4 Rule 2(1) and (2) provide as follows:
2(1) An application to set aside for irregularity any proceedings, any step taken in any proceedings or any document, judgment or order therein shall not be allowed unless it is made within a reasonable time and before the party applying has taken fresh step after becoming aware of irregularity.
2(2) Any application under Sub rule (1) may be made by summons or motion on notice and the grounds of objection shall be stated in the summons or notice of motion”.
PER AMADI, J.C.A.

WHETHER OR NOT IT IS EVERY MISTAKE OR SLIP IN JUDGMENT THAT OCCASIONS THE MISCARRIAGE OF JUSTICE

On issue three, the law is settled that it is not every mistake, slip or error by a trial Court that will cause the Court on appeal to reverse the judgment. See Olonade & Anor v Sowemimo (2014) LPELR 22914 SC. The appellant has to show that the error complained of affected the result of the decision and/or occasioned miscarriage of justice. Thus, where in spite of the error made out by the appellant, the decision appealed against would not be any different the appeal would fail. In such an instance the judgment appealed against would not be disturbed. See A.G. Leventis Nig Plc v Chief Christian Akpu (2007) 6 SCNJ 22, Oguntayo v Adelaja & Ors (2009) 6 – 7 SC (Pt. 111) 91 and Chief Ikedi Ohakim & Anor v Chief Martin Agbaso & Ors (2010) 6 – 7 SC 85. PER AMADI, J.C.A.

WHETHER OR NOT EXPIRATION OF A WRIT IS AN IRREGULARITY

It has been held in a plethora of cases that it is regarded as a mere irregularity if the recipient files processes in the matter in furtherance of his defense in spite of that irregularity.
In PAN LTD VS ABUBAKAR (2016) LPELR 41602 this Court on Effect of an expired writ of summons held:
“Nevertheless, expiration of a writ is an irregularity. It was held in ANSA V. CROSS LINES LTD (2006) ALL FWLR (PT. 321) 1271 AT 1286 that: “Service of an expired writ of summons without an order of Court renewing the same does not result in nullity of the writ or the service.” Though the Writ had expired, there is no occasion for miscarriage of justice here.”
Per ABBA AJI, JCA (P. 9, paras. D-F).
PER AMADI, J.C.A.

KENNETH IKECHUKWU AMADI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Kwara State High Court in suit No: KWS/224/2011 delivered on 16/1/2019, sitting at Ilorin by Hon. Justice M. O. Adewara.

The brief facts of the case that gave rise to this appeal is the respondent herein Alhaja Muinat Ashorobi and late Risikat Suleiman were children of late Alhaja Lateefat Odee Sadiku the said late Alhaja Lateefat Odee Sadiku made a Will as in exhibit I wherein she bequeathed the property in dispute in this case to the Respondent.

After the death of their mother (Alhaja Lateefat Odee Sadiku) her Will (exhibit I) was read. The said late Risikat Suleiman snatched a copy of the Will and the original copy of the title documents to the property in dispute and refused to return both the Will that he snatched and took away the Original title documents to the Respondent. But rather she sold the property to the Appellant. Meanwhile, the Respondent applied and further obtained a letter of administration in respect of the property.

​The Respondent as plaintiff commenced this at the lower Court against the said Alhaja Risikat Suleiman as first defendant and the Appellant as second defendant. While the suit was pending, the first defendant died and by an order of Court her name was struck out leaving the Appellant as the sole defendant in the suit.

By an amended writ of summons and statement of claim filed on 2/4/2015 the Respondent claimed against the Appellant as follows:
(a) A DECLARATION that the purported sale of the claimant’s property at No 6, Duro Sulyman Street, Tanke, Ilorin, Kwara State by the 1st Defendant to the 2nd Defendant is illegal, null and void.
(b) A DECLARATION that the claimant is still the lawful beneficiary and owner of the property at No 6, Duro Sulyman Street Tanke, Ilorin, Kwara State.
(c) An ORDER of this Court compelling the I” defendant to release to the claimant the original title document in respect of the property at No 6, Duro Sulyman street, Tanke, Ilorin, Kwara State which the 1st defendant forcefully snatched.
(d) An ORDER of this Court compelling the 2nd defendant remit to the Registrar of this Court for onward transmission to the claimant all rent and account of monies collected so far from the tenants put into the claimant’s property from year 2009 up to date.
(e) The sum of One Million Naira only for general damages and act of trespass committed by the defendants to the property of the claimant.

At the end of trial the lower Court gave judgment in favour of the claimant (now Respondent) aggrieved by the Judgment the Appellant filed his Notice of Appeal wherein he raised eight grounds of Appeal thus:
GROUND ONE
The learned trial judge erred in law for giving life to, and basing his judgment on the life span, of the originating process in the resolution of the issues before him and thereby granting the respondent’s claims when there was no valid writ served on the defendant/Appellant upon which the Court could base its judgment.
GROUND TWO
The learned trial judge erred in law and jettisoned his sacred duty when he held that the claimant/respondent has established her title to the land in dispute via Exhibit 1 and Exhibit 2
GROUND THREE
The learned trial judge erred in law and jettisoned his sacred duty when he held that a Muslim can make a Will if it is not more than one third of his property when there is nothing on record to show that the property in Exhibit 1 is not more than one third of the respondent mother’s property.
GROUND FOUR
The learned trial judge erred in law when, having stated the correct principle of the law to the effect that a claimant must prove his case positively and not rely on weakness of the defendant, he went further misapplying the principle when the claimant/respondent had not proved his case as required by law.
GROUND FIVE
The learned trial judge erred in law and jettisoned his sacred duty in his failure, neglect and refusal to consider and give effect to vital issues raised in the appellant’s case.
GROUND SIX
The learned trial judge erred in law in relying on the evidence of the claimant as PW1 in this case when her evidence is most unreliable and inadmissible in law.
GROUND SEVEN
The learned trial judge erred in law when he awarded the sum of N100,000.00 (One Hundred Thousand Naira) only against the defendant /appellant as general damages for trespass.
GROUND EIGHT
The judgment of the learned trial judge is against the weight of evidence.

The Appellant filed his brief of argument on 13/11/2020 which was deemed properly filed and served on 17/11/2020.

The Respondent filed her brief of argument on 17/3/2021 which was also deemed properly filed and served on 1/12/2021. The Appellant filed a Reply brief on 30/11/2021 which was equally deemed properly filed and served on 1/12/2021. The appeal was heard on the 20/1/2022

In his brief of argument the learned counsel for the Appellant raised 4 (four) issue for determination as follows:
1. Whether the life span of the originating process in this case having expired before its service, thereby robbing the trial Court of its requisite competence and jurisdiction to entertain the case, the learned trial judge was not wrong in basing his judgment on the expired originating process.
2. Whether the learned trial judge was right in his reliance on exhibits 1 and 2 in granting the respondent’s reliefs when there is/was no basis for such reliance, and moreso when exhibit 1 is not only invalid but has also divested the respondent of the requisite locus standi to institute the suit.
3. Whether the learned trial judge was not wrong in refusing and/or failing to consider, pronounce upon and give effect to vital issues raised in the appellant’s case.
4. Whether, on the preponderance of evidence, the palpable irregularities manifest in the respondent’s case and the entire circumstances of this case, the learned trial judge was right in holding that the respondent has established her title to the landed property in dispute thereby granting her reliefs rather than dismissing her case.

In respect of issue one, the learned counsel submitted that the life span of the originating process in this case had already expired before its purported service on the Appellant. That the learned trial Judge was therefore wrong in basing his decision on same having been robbed of the jurisdictional competence to entertain the suit upon the expiration of the life span of the originating process.

That the learned trial judge was wrong in holding that the already expired originating process was valid because the defendant/appellant entered an unconditional appearance and took several steps thus waving his right to complain.

That contrary to the position of the trial Court, the Appellant’s objection to the validity of the originating process served after the expiration of its life span is/was not a mere irregularity but that which goes to the root of the case as it affects the competence of the originating process and the Jurisdiction of the trial Court to entertain same.

That the Supreme Court case of Kolawole v Alberto (1989) 1 NWLR (Pt. 98) 382 at 397 relied on by the trial Court did not decide that service of expired originating process remains valid if the defendant enters an unconditional appearance without an order of Court renewing the writ.

That the only condition which can make service of an expired originating process effective is if such process has been renewed in accordance with the rules of the Court and since the process was never renewed, its service is grossly defective.

Continuing, counsel submitted further that the issue of validity of originating process for service is beyond a mere technicality or procedural irregularity. That it affects the jurisdiction of the Court and can be raised at any stage of the proceedings. That there is no particular mode of raising it. That it can be raised viva voce. Counsel referred to the cases of Petrojessica Enterprises Ltd & Anor v Leventis Technical Co. Ltd & Anor (1992) 6 SCNJ, 154 at 167; Comfort Olaosun v Ogunesmi (2004) ALL FWLR (Pt. 214) 49 at 63-64; Owners of the M. V. “Arabella” v N. A. L C (2008) ALL FWLR (Pt. 443) 1208 at 1232-1233 among others. Counsel urged the Court to resolve this issue in favour of the Appellant and set aside the judgment of the trial Court as there was no valid originating process upon which the Court could have based its Judgment.

In respect of issue two that is; Whether the learned trial judge was right in his reliance on exhibits 1 and 2 in granting the Respondent’s reliefs when there is/was no basis for such reliance, and moreso when exhibit 1 is not only invalid but has also divested the Respondent of the requisite locus standi to institute the suit. it is my humble submission that the learned trial Judge was wrong in relying on Exhibits 1 and 2 in granting the Respondent’s reliefs as there was no basis whatsoever for such reliance.

​Counsel argued that Exhibit 1 is a copy of the Will purportedly made by the Respondent’s mother wherein the Respondent claims the subject matter (twin flats) were bequeathed to her while Exhibit 2 is a copy of letter of administration purporting to be issued to the Respondent pursuant to Exhibit 1. That considering the contents of Exhibit 1 that the Appellant lacks the requisite locus standi to institute the case and the suit is/was not maintainable by her. That paragraph 13 of the said exhibit provides that:
I HEREBY DECLARE that any person whether he or she is a beneficiary under my Will OR not who institute any judicial proceeding with a view to sharing in or increasing or change, alter, modify or challenge my directives whatsoever as provided in this my Will SHALL BE AND IS HEREBY disinherited and shall take nothing under this my Will or upon the intestacy of the whole or partly of my Estate.

That the Respondent clearly has no locus to initiate this action and by commencing this action in Court contrary to the provision of the said paragraph 13 has further disinherited himself.

Also that Looking at the said Exhibit 1 from another perspective counsel submitted that the learned trial judge was wrong in holding that a Muslim can make a Will if it is not more than one third of his property in his reliance on Exhibit 1 in granting the Respondent’s reliefs when there is nothing on record to show that the property in Exhibit 1 is not more than one- third of the Respondent mother’s property.

In respect of issue three; whether the learned trial judge was not wrong in refusing and/or failing to consider, pronounce upon and give effect to vital issues raised in the Appellant’s case.

Counsel submitted that the learned trial Judge was wrong in his failure to consider, pronounce upon and give effect to vital issues raised in the Appellant’s case. That these include; non-Compliance with the lower Court’s order by the respondent. That the lower Court’s order of amendment made and/or granted on 17th day of July 2012, pursuant to the Respondent’s ex-parte application of 8th day of June 2012, wherein the learned trial judge granted the Respondent’s prayer that the 2nd defendant then, “Mr. Ibrahim Gbenga”, be altered by adding “Afonja” to it was raised at the trial Court. That instead of just adding “Afonja” to Ibrahim Gbenga to give Ibrahim Gbenga Afonja the Respondent unilaterally amended the Appellant’s name to Ibrahim Afonja without the leave of Court. That the legal implication is that there is no order of the learned trial judge changing the then 2nd defendant’s name from Mr. Ibrahim Gbenga Afonja to Mr. Ibrahim Afonja. Also the contradictions in the date of death of Respondent’s mother. That there is contradiction in the date of death of the Respondent’s mother, which the Appellant raised before the trial Court to the effect that the Respondent failed to establish the date of death of her mother. That while the Respondent pleaded the fact that her mother died on 8/5/2008 under cross examination she said that her mother died on 9/5/2008. That it is the duty of the Respondent to establish the date his deceased mother who bequeathed the landed property in dispute to her through exhibit 1 died.

​Furthermore that the issue of locus standi of the Respondent was equally raised by the Appellant at the trial, that as crucial as it is, the lower Court never pronounced upon it. That the Appellant also raised a vital issue to the effect that the Respondent did not even establish that exhibit 1 was ever read as she did not call any person who was there when it was purportedly read; hence the issue that Alhaja Risikat Abimbola Sulyman snatched the Will and the time it was read was never established to determine whether the Will was ever read remained unresolved. Further also the issue of signature of the testator, the Respondent’s Mother on Exhibit 1, was equally raised by the Appellant to the effect that Exhibit 1 (the Will) was never signed by the Respondent’s mother as she thumb printed whereas the Respondent said under cross examination that her mother could sign with the assistance of her father. That this issue was raised by the Appellant but there was no pronouncement thereon whatsoever. That the law is firmly settled and established that once an issue is properly placed before the Court, it is the duty of the Court to consider and pronounce upon it, failure which Will amount to a miscarriage of justice. That the learned trial judge failed woefully to consider, pronounce upon and give effect to the issues highlighted above and such a failure has occasioned a miscarriage of justice. Counsel referred to the case of Ovunwo & Anor v Woko & 2 Ors (2011) 6-7 SC (Pt. I) 1 at 20-21.

​In respect of issue four; whether on the preponderance of evidence, the palpable irregularities manifest in the Respondent’s case and the entire circumstances of this case, the learned trial judge was right in holding that the Respondent has established her title to the landed property in dispute thereby granting her reliefs rather than dismissing her case.

Counsel argued that the testator of the Will (Alhaja Latifat Odee Sadiku) died as a Muslim and was immediately before her death subject to Islamic Law. That the learned trial judge was wrong in shifting the burden of proof that what the respondent’s mother purportedly bequeathed to the respondent by Exhibit 1 is more than 1/3 of her entire properties. That the burden of establishing what the testator bequeathed in a Will can never be on the Appellant. That it is the respondent who has such burden of proof to discharge but which she failed woefully to discharge.

That the learned trial judge confirmed and found that the respondent’s mother could make a Will as a Muslim under Section 4 of the Kwara State Wills Law but cannot dispose off, all her properties by the Will. That there is nothing to show from Exhibit 1 that what the Respondent’s mother Willed out is not more than 1/3 of her estate – personal and/or realty. That it is glaringly clear by Exhibit 1 that the testator bequeathed all and every of her Estate.

Continuing, counsel argued that by exhibit 1, the Respondent was a named executor of the Will, therefore it was wrong for her to have proceeded to obtain a letters of Administration to administer the same property. Counsel urged this Court to allow the appeal and set aside the judgment of the lower Court.

On the other hand the learned counsel for the respondent in his own brief of argument modified the four issues raised by counsel for the Appellant thus:-
1. Whether the learned trial Court was not right when it held that the appellant having entered unconditional appearance and taken several steps in this case after the service of the writ on him, the appellant has waived his right to raise the issue of non-compliance again with Order 6 Rule 6 (1) of the Kwara State High Court (Civil Procedure) Rules 2005
2. Whether on the preponderance of credible evidence of the respondent, the learned trial judge was not right in his reliance on exhibits 1and 2 in granting the respondent’s relief in its totality consider and pronounce on all issues for determination at the trial Court (ground 5)
3. Whether on the preponderance of credible evidence of the respondent, the learned trial judge was not right in his reliance on exhibits 1and 2 in granting the respondent’s relief in its totality
4. Whether from the peculiar facts and circumstances of this case, the credible and the reliable evidence before the trial Court, the learned trial judge was not right in holding that the respondent has established her case, thereby granting her reliefs.

In respect of issue one, counsel argued that the purpose of Order 4 Rule 2(1) of Kwara State High Court (Civil Procedure) Rules 2005 is to avoid a situation such as the one at hand where a party Will discover an irregularity and deliberately refuse to accept service and wait until the writ has lapsed. That the Appellant curiously avoided service of the writ of summons and even when he briefed counsel (two particularly), they both withdrew appearance because of the purported refusal of the Appellant to properly brief them.

Counsel queried that if they had not been briefed why were they in Court and how did they know that the case is in Court and before which Judge they appeared? Counsel referred to pages 114-121 and pages 161-165 of the record. Counsel submitted that the Appellant deliberately refused to take service and refused to even properly brief counsel. That the law is trite that a party will not be allowed to benefit from his own default. Counsel referred to Ibrahim v Osunde (2009) 6 NWLR (Pt. 1137) 382 at 404 Paras A-B.

Continuing counsel argued that the Appellant did not challenge the writ upon being served but took further steps on the originating process and allowed the Court to take proceeding on same. That it has been held by the Apex Court that filing of application after the objector ought to or had become aware of the irregularity amounts to taking fresh step, referring to the case of Enterprises Bank Ltd v Aroso (2014) 3 NWLR (Pt. 1394) 256 at 295 Para C.

​That the Appellant made series of applications at the trial Court upon filing the unconditional appearance on 10th April, 2013. That the record of the trial Court shows that the Appellant’s counsel at one point or the other made different kinds of applications ranging from adjournment, change of counsel to extension of time to file defence. Counsel referred to the proceedings of the trial Court of 15/05/2013, 10/06/2013, 10/06/2014, 25/11/2014, 04/03/2015, 01/03/2016 and 13/07/2016 (contained at pages 421 to 429 of the record of appeal). That in all these proceedings above, the Appellant never deemed it fit to raise the issue of irregularity but waited until the parties had concluded trial in the proceedings and what is more, he even gave evidence before the Court. That this is forbidden by Order 4 Rule 2(1) of the Rules aforesaid. That having taken steps, the Appellant cannot raise the issue of the purported non-compliance again.

Counsel submitted that the unconditional appearance -filed by the Appellant on 10th of April, 2013 and the several steps taken by the Appellant’s counsel at the trial Court have validated any defect in the writ of summons of the Respondent and service thereto.

That by virtue of Order 4 Rule 2(2) of the trial Court Rules, the objection of the Respondent on the non-compliance with the provision of the rules is incompetent and ought to be discountenanced by this Honourable Court. That the said Order 4 Rule 2 (2) provides inter alia that:
“Any application under Sub rule (1) may be made by summons or motion on notice and the grounds of objection shall be stated in the summons or notice of motion”

That the purport of the above is that the Rules did not give room for bringing objection such as in the instant matter (in the pleadings) to lay ambush for the other party. That the law needs not be stressed that where a statute or rules provides a method of doing of things, it is only that method or means of doing that particular thing that must followed and no other. Counsel referred to Nwankwo v Yar’dua (2010) 12 NWLR (Pt. 1209) 518 at 559 Paras A-B. That the Appellant having failed to bring this objection by the way prescribed by the law which is motion or summons and as such, he cannot be heard on those objections as the trial Court rightly held. Counsel referred to the case of Unity Bank Plc v Kay Plastic Nig. Ltd & Anor LPELR 8839, where Nweze (JCA as he then was) when he was confronted with similar issue as the one at hand, his Lordship opined on Order 4 Rule 2 (2) at pages 16-17 of the judgment that the auxiliary verb “may” employed in Order 4 Rule 2(2) supra is mandatory. It does not admit any discretion”

Counsel submitted that the learned trial Court was right to have discountenanced with the objection in its entirety as the Rules do not give discretion to the Appellant in this regard on same. Counsel urged the Court to resolve this issue in favour of the Respondent.

In respect of issue two, that is whether on the preponderance of credible evidence of the respondent, the learned trial judge was not right in his reliance on exhibits 1and 2 in granting the respondent’s relief in its totality.

​Counsel argued that at the trial, the Respondent relied on the Will and Letter of administration exhibits 1 and 2. That exhibit 1 shows that the property in dispute was bequeathed to the Respondent by her late mother, late Alhaja Lateefatu Ode Sadiku. That the salient fact which was not disputed by the Appellant is that the property originally belonged to Alhaja Lateefatu Ode Sadiku. That the Appellant did not show that the Respondent’s late mother had no capacity to make the Will herein and could not have validly done so at the trial Court, same not being a probate action. That as at the time of making the last Will of the Respondent’s mother, everything was in order in the sense that the Respondent’s mother was of sound mind and had the mental capacity to do so and there was no inducement from anybody and the Will was duly executed. Therefore, the Will (Exhibit 1) of Late Alhaja Latifatu Odee was validly made and she understood all the contents contained therein. That once it is established that the Will was validly made, all the beneficiaries are entitled to any gift made in the Will. Counsel referred to Amu v Amu (2000)7 NWLR (Pt. 603)104 at 170 paras E- F and Okelowa v Boyce (1998)2NWLR (Pt. 539) 533 at 561 Paras G-H.

Continuing, counsel submitted further that apart from the Will, the Respondent took a step further by having letter of administration or probate of the Will in her favour as one of the executors and thus Exhibit 2. That by Exhibit 2, the administration of the property in dispute was given to the Respondent. That by virtue of Section 7(1) & (2) of Administration of Estate Law of Kwara State, CAP. AI, Laws of Kwara State 2006, the Respondent being one of the executors of the Will is entitled to be issued with Exhibit 2. That the Appellant is estopped from denying the existence of Exhibit 2. That the trial Court found that as a matter of probate procedure before a letter of administration or probate in respect of a Will is issued, there would be publication calling for objection/caveat against the issuance of the letter of administration or probate within 21 days which was done in the present case. That it was when there was no response or objection against the issuance within time that the letter of administration/probate, exhibit 2 was issued. That a party who has objection to the issuance of a letter of administration has right to enter caveat referring to Section 18 of the Administration of Estate Law of Kwara State. That the publication is a constructive notice against the whole world including the Appellant herein and as such, he cannot claim otherwise having failed to enter caveat against same.

​Continuing counsel argued further that the Appellant has no requisite power or locus standi to challenge exhibits 1and 2. That the Will was not made in his favour and not a beneficiary to same hence, he has no interest to protect in the Will. Therefore, whether Exhibit 1 complied with Wills law of Kwara State on the Muslim injunction can only be challenged by a party who is entitled to benefit from the Will but was not given the opportunity. That it cannot be the Appellant who is not a member of the Respondent’s family. That the Appellant is therefore, precluded from raising such issue as he has no power to raise such.

That apart from the above counsel submitted that there is nothing in paragraph 13 of exhibit 1 which precluded the Respondent from bringing this action but rather the said paragraph 13 of exhibit 1 is against the Appellant and his purported predecessor in title. That the qualifying clause in that paragraph is “with a view to sharing in or increasing or have share of my estate or reducing or demanding share in my estate” The above clearly brings to fore the intention of the testator which is totally different from the present action. That the present action is brought simpliciter for the Respondent to protect what was bequeathed to her by the testator and which nevertheless took effect upon the death of the testator.

That the Wills law of Kwara State never stated that a Muslim, cannot make a Will at all. That it merely provides that such Will must comply with the dictates of Islamic law of inheritance. The dictate of Islamic law is that a Muslim can make a Will in line with Islamic law on inheritance. Counsel urged the Court to resolve this issue in favour of the Respondent.

In respect of issue three; whether the learned trial judge did not consider and pronounce on all issues for determination at the trial Court. The learned counsel submitted that in the final written address of the Appellant dated and filed on 16/4/2018, the Appellant’s counsel submitted two issues for determination (pages 312 to 342 of the Record of Appeal). That the Respondent on the other hand, submitted four issues for determination. That the learned trial Judge adopted the issues formulated by the Respondent with slight modification (pages 476 to 477 of the record of Appeal). That all the five issues adopted by the learned trial judge were resolved against the Appellant. That as a matter of fact, the first issue was on the jurisdictional issue raised by the learned counsel to the Appellant. That therefore it remains to be seen, which issues the Appellant’s counsel is arguing that the learned trial Court did not consider. That all the trivial sub issues raised in the Appellant’s brief of argument were well captured in the main issues resolved by the trial Court. That all those, sub issues purportedly flowing from the main issues for determination of the Appellant were subsumed by the trial Court to the main issues which were considered and pronounced upon by the learned trial Court.

That assuming without conceding that the procedure in the amendment of the Appellant’s’ name was irregular, the law is trite that such is no longer of moment. This is because when an irregular procedure is adopted with the acquiescence of a party to a civil action, such adoption cannot be a ground or basis of an appeal. Counsel referred to Buhari & Ors v Obasanjo & Ors (2005) LPELR-815 (SC) SPDC Nig Ltd v Edamkue & Ors (2009) LPELR-3048 (SC), Ibator &. Ors v Barakuro & Ors (2007) LPELR-1384. (SC) Counsel urged the Court to resolve this issue in favour of the Respondent.

In respect of issue four; whether from the peculiar facts and circumstances of this case, the credible and the reliable evidence before the trial Court, the learned trial judge was not right in holding that the respondent has established her case, thereby granting her reliefs.

Counsel submitted that the learned trial Court was right to have held that the Respondent herein is entitled to all the reliefs sought in her writ of summons and statement of claim. That the Respondent established her title to the property in dispute at No.6, Sulyman Street Tanke, Ilorin through credible, reliable oral and documentary evidence how the said property devolved on her. That it is trite that where a party has established legal right to property, he must not be allowed to go home empty handed in line with the legal maxim of Ubi jus ibi remedium. Counsel referred to Eze v Governor Abia State (2014)14 NWLR (Pt.1426) 192 at 218 Paras C-F, Harka Air Services Ltd v Keazor Esq. (2011)11 NWLR (Pt. 1264) 320 at 361. Counsel submitted further that the trial Court carried out effectively its duty to evaluate the evidence before it pronounced on their credibility and ascribed probative value thereto, your Lordships will not disturb the findings of the trial Court. Counsel urged the Court to resolve this issue in favour of the Respondent, dismiss this appeal and affirm the judgment of the lower Court.

In his reply brief the learned counsel for the Appellant argued that on page 14 of the Respondent’s Brief, the Respondent has cited the cases of Idundun v Okumagba (1976) 9-10 SC 227, Nwokidu v Okanu (2010) 3 NWLR (Pt.1181) 362 at 396-397 and Obineche v Akusobi (2010) 12 NWLR (Pt.1208) 383 at 408-409 to argue that the Respondent has established her entitlement to the property by way of production of document of title duly authenticated and executed. That the cases cited were cited out of context. That the law is now firmly settled that once a party relies on production of document of title as his way of proving title, the document must not only be admissible, it must be capable of conferring title on the party relying on it. That on the authority of Romaine v Romaine (1992) 4 NWLR (Pt. 238) 650 at 662, the Court is to inquire into:
a. whether the document is genuine and valid;
b. whether the document has been duly executed, stamped and registered;
c. whether the grantor had the authority and capacity to make the grant;

d. whether the grantor had in fact what he purported to grant; and

e. whether it has the effect claimed by the holder of the instrument.

Counsel further referred the Court to the cases of Kyari v Alkali (2001) 5 SC (Pt. 11) 192 at 209 – 210 and Dabo v Abdullahi (2005) ALL FWLR (Pt. 255) 139. Counsel finally urged the Court to allow this appeal and set aside the judgment of the lower Court.

RESOLUTION
The Appellant raised four issues for determination of this appeal. The Respondent adopted the four issues raised by the appellant but modified them. I shall treat this appeal based on the four issues raised by the learned counsel for the Appellant.

Issue one deals with the issue of expired writ of summons before service on the Appellant. The learned counsel for the Appellant based his argument entirely on the ruling of the lower Court which ruling is contained at pages 257 to 268 particularly at page 265 last paragraph to page 266 first paragraph.

The learned counsel for the Appellant anchored his submission that the originating writ in this case was served on the defendant after it has expired from the last paragraph of page 9 of ruling to the second paragraph of page 10 that is at pages 265 to 266 of the record which ended thus “on the basis of the above I have no doubt in my mind that service on the defendant could not have been earlier than 10th March 2013 and I so hold”.

The learned counsel for the Appellant argued that if the originating process was issued on 29th July, 2011, then its life span would automatically expire on 29th January, 2012. And as ruled by the learned trial judge, the Appellant was purportedly served with the originating process not earlier than 10th Mach, 2013.

I have carefully and painstakingly read the entire ruling of the lower Court delivered on the 8th day of February 2017 contained at pages 257 to 268 aforesaid. Nowhere did the Court specifically hold that the originating process in this mater was served on the Appellant on the 10th March 2013 rather the Amended Statement of Claim dated 4th March 2013.

The foregoing is fortified by the preceding paragraph where the Court held that “I have earlier stated that it is clear from the record of this Court that an appearance was entered for the defendant by his counsel on 10th April, 2013 apparently based on service of the Amended statement of claim dated 4th March 2013. I make bold to hold that the Court could not have held that the originating process in this matter was served on 4th March, 2014, if the Court did so hold, such holding was made per-incuriam and hereby discountenanced for the following reasons: –
1. The writ of summons in this matter was issued on the 29/7/2011. See page 1 of the record.
2. By an affidavit of service the bailiff of the lower Court returned the process unserved. See page 35 of record.
3. By a motion ex-parte dated 14/ 12/2011 and filed on that same date the claimant (now respondent) sought for an order of Court for substituted service on the defendants then (1) Alhaja Risikat Suleiman and Mr. Ibrahim Gbenga. See pages 32 – 34 of the record.
4. That the Court granted the order for substituted service on the defendants. See page 200 of the record.
5. That the defendants were served by pasting as ordered by Court on the 24/01/2012 and the affidavit of service thereof is contained at page 202 of the record

​From the foregoing, it is not in doubt that the Appellant in this case was served with the originating processes as ordered by the lower Court by substituted means together with the then 1st defendant on the 24/01/2012.

The fact that the then 1st defendant in this matter Alhaja Risikat Sulieman died and her name was struck out of this suit and the further fact that the name of the Respondent was amended from Mr. Ibrahim Gbenga to Mr. Ibrahim Afonja will not and in fact did not vitiate in any manner or form, the service of the originating processes on the Appellant on the 24/01/2012 clearly within the life span of the originating writ of summons in this case, I so hold.

In any case, assuming but without conceding that the originating processes were served on the Appellant on the said 10/3/2013, that also could not have nullified the judgment of the lower Court by the reason of the specific provision of Order 4 Rule 1 and Order 4 Rule 2(2) of the Kwara State High Court (Civil Procedure) Rules 2005 which applied to this case. The failure to serve the writ within the specified time could be treated as an irregularity which will not nullify the judgment, I so treat it. The said Order 4 Rule 1 provides thus:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

Where in beginning or purporting to begin any proceedings, or at any stage in the course of or in connection with any proceedings, there has, by reason of anything done or left undone, been a failure to comply with requirements of these Rules whether in respect of time, place, manner, form or content or in any other respect, the failure may be treated as an irregularity and if so treated, will not nullify the proceedings, or any document, judgment or order therein.
Also Order 4 Rule 2(1) and (2) provide as follows:
2(1) An application to set aside for irregularity any proceedings, any step taken in any proceedings or any document, judgment or order therein shall not be allowed unless it is made within a reasonable time and before the party applying has taken fresh step after becoming aware of irregularity.
2(2) Any application under Sub rule (1) may be made by summons or motion on notice and the grounds of objection shall be stated in the summons or notice of motion”.
The import of the said Order 4 Rule 2(1) and (2) has specifically been expounded by this Honourable Court in the case of Unity Bank Plc v Kay Plastic Nig. Ltd & Anor LPELR 8839, where Nweze (JCA as he then was) when confronted with similar issue as the one at hand, his Lordship opined at pages 16-17 of the judgment thus:
“I have no hesitation in finding in favour of the eloquent adumbrations which the counsel for the appellant made on this point. The said Order 4 Rule 2 is one of the devices in the new regime of the rules of the lower Court designed to checkmate the old practice where counsel most instantly, stalled Court proceedings by objection which were often intended not only to spring surprise on the adversary but filibuster proceedings. Hence, under the said Order, any adversary who intends to object to any process must do so by way of motion or summons. The effect is that the “observation” of the counsel for the respondents at the lower Court on June, 2, 2008 was not well taken, the Court should have discountenanced it as improper. In other words, the only permissible mode of raising objections under Order 4 Rule 2 is either by way of summons or motion which processes must clearly, set out the grounds for the Objections. This must be so for, as Oladipo, for the appellant, rightly submitted, the auxiliary verb “may” employed in Order 4 Rule 2(2) supra is mandatory. It does not admit any discretion”.
I have no reason whatsoever, to depart from the holding of this Court that the provision of Order 4 Rules 2(2) is a mandatory provision I adopt same and shall abide by it, the Rules do not give discretion to the Appellant in this regard on same. This issue is resolved against the Appellant and in favour of the Respondent.

In respect of issue two, the intention of the testator in that paragraph 13 of the said exhibit 1 is very clear in the phrase that …who institute any judicial proceeding with a view to sharing in or increasing or change, alter, modify or challenge my directives whatsoever as provided in this my Will…underlining for emphasis. That it is the wish of the testator that the content of the Will be strictly administered. It means that paragraph 13 of exhibit 1 did not exclude any action for the enforcement of the Will. Therefore, it did not remove the locus standi of the respondent in this matter from enforcing the Will.

On issue three, the law is settled that it is not every mistake, slip or error by a trial Court that will cause the Court on appeal to reverse the judgment. See Olonade & Anor v Sowemimo (2014) LPELR 22914 SC. The appellant has to show that the error complained of affected the result of the decision and/or occasioned miscarriage of justice. Thus, where in spite of the error made out by the appellant, the decision appealed against would not be any different the appeal would fail. In such an instance the judgment appealed against would not be disturbed. See A.G. Leventis Nig Plc v Chief Christian Akpu (2007) 6 SCNJ 22, Oguntayo v Adelaja & Ors (2009) 6 – 7 SC (Pt. 111) 91 and Chief Ikedi Ohakim & Anor v Chief Martin Agbaso & Ors (2010) 6 – 7 SC 85.

Furthermore, the Respondent sought the leave of Court to amend the name of the defendant by adding Afonja to his name. He swore to an affidavit that she has come to know that the surname of the Appellant is Afonja. Upon granting her leave she amended the name of the Appellant from Mr. Ibrahim Gbenga to Mr. Ibrahim Afonja. The argument of the Appellant that the Respondent should have added Afonja to the existing name on record did not occasion any miscarriage of justice and cannot vitiate the judgment of the trial Court.

Furthermore, any mistake on the actual date of death of Alhaja Latifatu Odee Sadiku whether she died on the 8th May 2008 or 9th May 2008 clearly established the fact that she really died about or in between the 2 dates. The discrepancy on whether she died on 8 or 9/5/2008 has not brought her back to life and therefore, cannot invalidate her Will nor nullify the judgment of the lower Court in this matter.

I agree with the finding of the lower Court that by Section 4 of the Wills law of Kwara State a muslim can make a Will. A party challenging the said Will based on Islamic law has the onus to plead specifically all the properties owned by the testator in his life time and specifically prove how all the said properties were shared, and the recipients of the various properties of the deceased as against the ratio/percentage of sharing as provided inSection 4 of the Wills Law of Kwara State aforesaid.

It is also on record that all the issues adopted from the issues raised by the parties at the lower Court were fully treated, dealt with and pronounced upon by the trial Court. These trivial, minor and or sub-issues cannot affect the sanctity of the judgment of the lower Court. This issue is equally resolved against the Appellant and in favour of the Respondent.

This appeal is lacking in merit. It is hereby dismissed. The judgment of the lower Court in Suit No: KW/224/2011 delivered on the 16/1/2019 is hereby affirmed. The Appellant shall pay N100,000= being the cost of this appeal to the Respondent.
Judgment is entered accordingly.

UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form the judgment just delivered by my learned brother KENNETH IKECHUKWU AMADI Ph.D, JCA. The issue bordering on jurisdiction is whether the writ served on the Appellant had already expired before service on the Appellant.
It has been held in a plethora of cases that it is regarded as a mere irregularity if the recipient files processes in the matter in furtherance of his defense in spite of that irregularity.
In PAN LTD VS ABUBAKAR (2016) LPELR 41602 this Court on Effect of an expired writ of summons held:
“Nevertheless, expiration of a writ is an irregularity. It was held in ANSA V. CROSS LINES LTD (2006) ALL FWLR (PT. 321) 1271 AT 1286 that: “Service of an expired writ of summons without an order of Court renewing the same does not result in nullity of the writ or the service.” Though the Writ had expired, there is no occasion for miscarriage of justice here.”
Per ABBA AJI, JCA (P. 9, paras. D-F).
However, my learned brother in the lead judgment has held that the writ had not expired when it was served. Be that as it may, it is a mere irregularity that has not vitiated the trial in the lower Court and a fortiori in this Court.

For this and the more exhaustive reasoning in the lead judgment I also find this Appeal unmeritorious. This appeal is hereby dismissed. I abide by all the orders in the lead judgment including that as to cost.

ISAIAH OLUFEMI AKEJU, J.C.A.: I agree with the reasoning of my learned brother, KENNETH IKECHUKWU AMADI, JCA, as well as the conclusion that this appeal lacks merit. I dismiss it and abide by the consequential orders.

Appearances:

Dr. D. A. Ariyoosu, Esq. with him, Kayode Oni, Esq. A. O. Saka, Esq. Halima Jimada, Esq. and M. A. Oladepo, Esq. For Appellant(s)

O. J. David, Esq. with him, U. O. Olufadi, Esq. D. O. Bamidele, Esq. B. J. Owolabi, Esq. V. D. Maiye, Esq. and L. M. Zakariyyah For Respondent(s)