ANNA AMIR OLOYEDE v. LAWRA OMONI OLOYEDE
(2014)LCN/7609(CA)
In The Court of Appeal of Nigeria
On Monday, the 8th day of December, 2014
CA/I/243/2013
RATIO
PRACTICE AND PROCEDURE: WRIT OF SUMMONS; WHETHER IT IS BY WRIT OF SUMMONS THAT MOST ACTIONS ARE INITIATED
As a general rule, it is by writ of summons that most actions are initiated, but other originating processes being resorted to have been specified in Rules of court, Rules of practice or statutes. The use of any form of commencement of actions must be the prescribed process to be used.
Where statutory or regulatory provisions have been made for making a claim, the procedure prescribed therein for it ought to be followed in making it. See KASOAP VS. KOFA TRADING CO. (1996) 2 SCNJ 325 at 334. per. ALI ABUBAKAR BABANDI GUMEL,J.C.A.
COURT: INTERFERENCE; WHETHER AN APPELLATE COURT WILL INTERFERE WITH THE DISCRETION OF THE TRIAL COURT
Where a trial court is vested with a discretionary power to exercise, this court is always very reluctant to interfere with the exercise of that power, except where upon a compliant it was satisfactorily shown that the power was not exercised judicially and judiciously. In BIOCON AGROOCHEMICALS (NIG.) LTD & ORS VS. KUDU LTD & ANOR (2000) 15 NWLR (Pt.691) 493, (2000) LPELR- 784 (SC) the Supreme Court decided that it is settled law that an appellate Court will not generally interfere with the exercise of discretion by a lower court unless it is shown that there has been a wrongful exercise of the discretion. Where the lower court acted under a misconception of law or under a misapprehension of fact in that it either gave weight to irrelevant facts or it omitted to take into account matters that are relevant, or where it exercised or failed to exercise the discretion on wrong or inadequate materials and in all other cases where it is in the interest interfere of justice to interfere. per. ALI ABUBAKAR BABANDI GUMEL,J.C.A.
PRACTICE AND PROCEDURE: ORIGINATING SUMMONS; WHEN IS THE ORIGINATING SUMMONS PROCEDURE EMPLOYED AND WHETHER THE COURT CAN RESOLVE CONFLICTING OR CONTRADICTORY EVIDENCE RELIED BY PARTIES BY EVALUATING THE CONFLICTING EVIDENCE
The originating summons procedure is employed where the evidence in the main is by way of documents and there is no serious dispute as to their existence in the dealing of parties to the suit. See FAMFA OIL LTD. ATTORNEY GENERAL OF FEDERATION & ANOR (2003) 18 NWLR (PT.852) 453. Further to this, where a matter is being tried on affidavit evidence and the court is confronted with conflicting or contradictory evidence relied on by the parties on a material issue before the court, the Court cannot resolve such conflict by evaluating the conflicting evidence to achieve the resolution of the conflict. See ARJAY LTD. VS. A.M.S. LTD. (2003) 7 NWLR (Pt.820) 577. Against this difficulty, the law is settled and well defined that where affidavits of the parties conflict on every crucial, material and important aspect of the dispute between them, the conflict should be resolved by oral or some other evidence.
However, there is an exception to this general rule if the facts in conflict are flimsy, distractive, or generally irrelevant and immaterial, the court can disregard them and evaluate the evidence on both sides in order to resolve them. See the vintage decision in FALOBI VS. FALOBI which has consistently been by followed and applied as locus classicus on when to resort to oral evidence when faced with conflicting affidavit evidence. See also EZECHUKWU VS. ONWUKA (2006) 2 NWLR (PT.963) 151 at 196 TO 197 and DANA IMPEX LTD. VS. AWUKAM (2006) 3 NWLR (PT.968) 544 at 563. per. ALI ABUBAKAR BABANDI GUMEL,J.C.A.
JUSTICES
ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria
MUDASHIRU NASIRU ONIYANGI Justice of The Court of Appeal of Nigeria
NONYEREM OKORONKWO Justice of The Court of Appeal of Nigeria
Between
ANNA AMIR OLOYEDE Appellant(s)
AND
LAWRA OMONI OLOYEDE Respondent(s)
ALI ABUBAKAR BABANDI GUMEL,J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Oyo State High Court delivered on 30th April, 2013 in suit No. 1/205/13.
The Respondent herein was the Claimant at the Oyo State High, Court, she claimed for herself and her children in an Originating Summons dated 15/01/13 but filed on 22/02/13. In the summons, the Respondent sought for the determination of the following 2 questions. They are:-
“1. Whether by virtue of the last will and testament of Late Captain Rufus Olaniyi Oloyede dated 6th day of March 2006, lodged at the probate registry of the High Court of Oyo State, the claimant and her children are not entitled to the possession of the house lying situate and being at NW7/82 Eleyele Ibadan (also known as NO. 28, Segun Oriola Street, Eleyele, Ibadan.
2. Whether by virtue of Order 55 Rule 30 of the High Court (Civil procedure) Rules 2010 of this Honourable Court, the Court has powers to treat the appointment of Benjamin Beyioku Oloyede as an Executor to have seized to exist.”
Upon and further to the determination of these 2 questions, the Respondent sought for the following main and alternative reliefs. They are:-
“(a) A Declaration that the Claimant is entitled to possession of the entire premises lying situate and being at NW7/82, Ibadan (also known as No 28, Segun Oriola Street, Eleyele, Ibadan).
(b) AN ORDER compelling Benjanmin Beyioku Oloyede to apply for the Probate of the estate of Late Captain Rufus Olaniyi Oloyede.
ALTERNATIVELY
(c) AN ORDER nullifying the appointment of Benjanmin Beyioku Oloyede as an executor of the Will of Late Captain Rufus Olaniyi Oloyede”.
The originating summons is supported by an affidavit of 18 paragraphs with 4 documents attached as Exhibits A to D. It was deposed to by the Respondent herself. Learned Counsel Mr. Olayinka Esan, on behalf of the Respondent, filed a written address to argue the originating Summons.
The Defendant/Appellant replied with a 19 paragraph counter-affidavit to oppose the summons. The son of the Appellant Mr. Benjamin Beyoku Oloyede filed a 17 paragraph further affidavit to oppose the summons too. Also, learned counsel, Mr. Luqman Laoye, filed a 2 page written address to oppose the reliefs in the summons. A 2nd further affidavit in support of originating summons was filed by Mr. Bandele Adewumi Oloyede. He is an executor to the will of late Testator. He is also a son of the deceased testator. This affidavit is of 12 paragraphs.
Learned counsel Mr. Esan replied to the response of the Appellant to his written address by way of a written reply on points of law. A further counter affidavit of Mr. Bandele Oloyede was deposed to and filed by Benjamin B. Oloyede.
Issues having been duly joined, the Originating Summons was argued on 11/4/2013 and judgment fixed for 30/04/2013. In its judgment, the lower court answered the first question for determination in the positive and answered the 2nd questions, in the negative. And upon its answers to the questions the court went further to enter judgment as follows:-
“(1) it is hereby declared that under the Will and Last Testament of Rtd. Captain Rufus Olaniyi Oloyede of NW7/82, Eleyele Ibadan the claimant and her children are entitled to possession of the entire premises lying and being at NW7/82 Eleyele Ibadan also known as NO. 28, Segun Oriola Street, Eleyele, Ibadan.
(2) The executors named in the Will are hereby directed to apply for the probate of the said Will within 3 months from today failing which Benjanmin Beyioku Oloyede would be deemed to have renounced probate.”
The Defendant, now Appellant was dissatisfied with this judgment and appealed to this Court in a notice of appeal dated and filed on 3/5/2013. It is predicted on 3 grounds of appeal. The grounds of appeal and their particulars are hereby reproduced as follows:-
“GROUND OF APPEAL
i. The learned trial Judge erred in law in entertaining the Claimants originating summons when the court lacks jurisdiction to entertain the claim.
PARTICULARS OF ERROR
a. When originating summons is not a proper mode of commencing a suit where there are contentious issues between the parties to be resolved by the court.
b. When the improper mode of commencement of the suit by originating summons affected the jurisdiction of the court to entertain the suit.
ii. The learned Judge erred in law in granting the Claimants claim despite the irreconcilable conflict in the deposition of the parties to the suit.
PARTICULARS OF ERROR
a. When the court cannot validly and legally determine a suit by originating summons where there are serious conflicts in the depositions in the affidavits of parties to the suit in this case.
b. When the court ought to have ordered parties to the suit to file pleadings and lead evidence in support of their cases based on the conflicts in the depositions in the affidavits of parties to the suit.
iii. The learned trial judge erred in law in compelling one Benjamin Oloyede to apply for the probate of Late Captain Oloyede when the said Benjamin Oloyede was not a direct party to the case.”
To argue the appeal, learned counsel Mr. Laoye filed a brief of argument on 8/11/13 which was deemed properly filed on 12/05/14. The Respondent’s brief was filed on 13/5/14 by Mr. Esan further to which Mr. Laoye, of Counsel, filed a reply brief on 26/5/14.
From the 3 grounds of appeal, learned counsel Mr. Laoye, formulated and argued 2 issues for the determination of this appeal. They are:-
“i. Whether the lower court had jurisdiction to entertain or determine the Respondent’s claim by originating summons.
ii. Whether the lower court was right in granting the claimant’s claim by originating summons in view of irreconcilable conflict/ difference in the affidavits of the parties to the suit.”
Learned counsel Mr. Esan did not formulate any issues of his own but adopted the 2 issues formulated on behalf of the Appellant.
Before I venture into the issues for the determination of this appeal, I wish to highlight some of the key facts that led to it. On the 6th March, 2006, in the presence of 2 witnesses the late husband of the Appellant and the Respondent executed a will and disposed his landed properties at both Ibadan and Ile-Ife. Also pursuant to the testamentary dispositions he appointed his 2 sons, Mr. Bandele Adewumi Oloyede and Benjamin Beyioku Oloyede as the Executors of the Will. Because the Will is just about a
page and a half, I wish to reproduce it in full.
“THE LAST WILL AND TESTAMENT OF RTD. CAPTAIN RUFUS OLOYEDE OF NW7/82, ELEYELE. IBADAN.
I Rtd. Captain Rufus Oloyede of NW7/82, Eleyele, Ibadan hereby revoke all testamentary dispositions made by me and declare this to be my last will.
I appoint my sons Bandele Adewumi Oloyede and Benjamin Beyioku Oloyede both of NW7/82, Eleyele, Ibadan to be the executors of this will.
(a) I devise and bequeath my house NW7/82, Eleyele, Ibadan (also known as No. 28, Segun Oriola Street Eleyele Ibadan) to my wife Lawra Omomi Oloyede and her children.
(b) I devise and bequeath my house known as No. 19 Odejayi Street Loyola Gate Ibadan (also known as E9/688A Odejayi, Avenue, Loyola, Agodi Ibadan) to my wife, Anna Amir Oloyede and her children.
(c) I bequeath and devise a 2-bedroom apartment and 3 shops to my son Olatunji Emmanuel Oloyede within my house No. 1 Abewela Compound Ile-Ife.
(d) I bequeath and devise the story building at the back of the house No. 1 Abewela Ile-Ife, to Mr. Bamidele Adewumi Oloyede (the upstairs)
(e) The ground floor of the same building I bequeath and devise to my son Bejamin Beyioku Oloyede. The devises in (d & c) so also to their respective brothers and sisters.
I command that none of my wives or children should go against this my wish in my will. No one should go to any court of law at the time I make this, I am completely same and in control of faculty.
In WITNESS whereof I have hereunto set my hand this 6th day of March, 2006.”
Upon the death of the Testator, a dispute arose as to his real intention in the will with respect to the property lying and situate at NW7/82 Eleyele, Ibadan (also known as No. 28, Segun Oriola Street, Eleyele, Ibadan). Against the dispute that arose the Respondent herein took out the within named originating summons against the Appellant for the determination of the real intentions of their late husband in his will and final testamentary dispositions. I find paragraphs 7-18 of the affidavit in support as important and relevant in the circumstances. They are hereby reproduced in full. They are:-
“7. That my husband has two properties in Ibadan that he mentioned in the will.
8. That in the will my husband devised and bequeath the house NW7/82, Ibadan (also known as No. 28, Segun Oriola Street, to me and my children.
9. That the second house which is at No. 19, Odejayi Street Loyola, gate, Ibadan (also known as E9/668A Odejayi, Avenue, Loyola, Gate Ibadan) was given the defendants.
10. That my husband made Bamidele Adewumi Oloyede and Benjamin Beyioku Oloyede who were his children executors of the will.
11. That at the time of death of my husband we were living at the house at defendants as at No. 28, Segun Oriola Street, Eleyele Ibadan.
12. That all efforts to make Benjamin Beyioku Oloyede take necessary steps in order for the beneficiary of the will to have possession of their property proved abortive.
13. That the defendant is fully in charge of the house at No. 19, Odejayi Street, Loyola, gate, Ibadan and collecting rent from the tenants.
14. That the defendant still occupy a large part of the house at No. 28, Segun Oriola Street, Eleyele Ibadan, thereby preventing me and my children from taking possession of what has been given to us by my husband.
15. That we caused our solicitor to give them notice to vacate the premises through a letter dated 30th May, 2012. (Attached herewith and marked Exhibit C is a copy of the letter.
16. That upon the receipt of the notice the said Benjamin Beyioku Oloyede caused a lot of trouble that the police at the State Headquarters at Eleyele had to intervene and advised that the defendant pack out of the premises.
17. That when the defendants refused to vacate the premises, we instructed our solicitor to give the notice of our intention to apply to court to recover the possession of the premises which they occupy.
(Attached herewith and marked Exhibit D is a copy of the Notice.
18. That unless an order of Court is obtained the defendants will not peacefully vacate the premises.”
Against these averments of the Respondent, the Appellant deposed to a counter affidavit. Paragraphs 3 to 18 would appear to be the amplification of the dispute that arose. They are also hereby reproduced thus:-
“3. That paragraph 4, 5 and 9 of the affidavit are hereby admitted.
4. That paragraph 8 of the affidavit is admitted to the extent that the Late Captain Rufus Oloyede bequeathed only one house to the Claimant and her children at NW7/82 Ibadan also known as 28 Segun Oriola Street, Eleyele Ibadan.
5. That Late Captain Rufus Oloyede own two separate houses at Segun Oriola Street, Eleyele Ibadan.
6. That the house bequeathed to the Claimant is separate and distinct from the family house at the back of the house bequeathed to the Claimant.
7. That the duplex at the back of the house bequeathed to the Claimant is the family property wherein our late husband Captain Rufus Oloyede was buried based on his instruction and desire during his lifetime.
8. That before his death and long before he made his will Late Captain Rufus Oloyede had at a meeting with the Claimant myself and our children directed that himself and his wives be buried in the house at the back of the house bequeathed to the Claimant and her children.
9. That our husband Captain Rufus Oloyede also directed that the family house be reserved for all his wives and children after his demise.
10. That in compliance with the directive of our late husband was buried in the house reserved as the family property and situate at the back of the house bequeathed to the Claimant and her children.
11. That the Claimant had been collecting rent from the tenants in the tenant house bequeathed to her and her children by our late husband.
12. That I was never served with the purported notice of intention to apply to recover possession of the Premises referred to as Exh. D in the Claimants affidavit.
13. That upon the receipt of the letter referred to as Exh C in the Claimants affidavit, I took the letter to the family lawyer who prepared late Captain Rufus Oloyede’s will late Chief Obiyera Odunlade who expressed surprise at the claim of the Claimant to the family house and asserted that the said house was not part of the house bequeathed to the Claimant.
14. That in my presence Late Chief Odunlade phoned the Claimant’s lawyer to clarify that it is only the house in front of the family property that was bequeathed to the Claimant by our late husband while that of the back of the building remains the joint family property of the wives and children of late Captain Rufus Oloyede.
15. That I am surprised that the Claimant now filed this suit after becoming aware of the demise of Late Chief Obiyera Odunlade who died on 12th February, 2013.
16. Bandele Oloyede the 1st son of the Claimant presently resides in the family property at Segun Oriola Street, Eleyele Ibadan.
17. That it will not be in the interest of justice to grant the Claimant’s application.
18. That myself and my children would be seriously prejudiced if the application is granted as we would have been denied a stake in the family property of our late husband and father.”
In arguing the 1st issue, learned counsel Mr. Laoye began by referring to the case of MADUKOLU VS. NKEMDILIM (1962) SCNLR 341 and explained that where a matter was not initiated by due process and upon fulfilment of condition precedent to the exercise of a court’s jurisdiction, it would totally lack competence and power to entertain the matter. Against this background, learned counsel added that since the determination of a suit by originating summons is only proper and desirable where facts are not in dispute between the parties in a case, according to learned counsel where there are irreconcilable conflicting facts in the matter the proper order for the court to make is for the parties to file pleadings and lead evidence to support the factual assertions therein. He referred to the Supreme Court decision in OBA OYEWUMI VS. OBA OSUNBADE (2007) FWLR (Pt. 388) 1004 at 1014 per Ogbuagu JSC and Akintan JSC at 1015. Upon the quoted remarks of their Lordships, learned counsel submitted and urged on this court to so hold that since the facts as to whether it was one or two houses that was bequeathed to the Respondent by her late husband was in dispute between the parties, it was not appropriate for same to be determined by way of an originating summons.
He urged on the Court to resolve this issue against the Respondent.
In his response learned Counsel Mr. Esan quoted and referred to Order 3 rule 5 of the Oyo State High Court Civil procedure Rules and explained that the claim of the Respondent at the Court below was predicated and founded upon a right under a Will. Sequel to that Mr. Esan, of counsel submitted that the lower court was fully seised of power, competence and jurisdiction to entertain the claim in this appeal. And while referring to the decision of the Supreme Court in UZODINMA vs. IZUNASO (No.2) (2011) 17 NWLR (Pt. 1275) 30 at 75-76, learned counsel pointed out that Mr. Laoye, counsel failed to show any irreconcilable conflicting facts in the affidavits of the parties and further maintained that even if there were controversial or conflicting facts they must be shown to be relevant to the determination of the main issue in the dispute between the parties.
Against this background, learned counsel Mr. Esan submitted that there is no conflict in the affidavit evidence as to the content of the will.
He added further that the content of a will as a written document, cannot even be varied by assertions contained in an affidavit. He referred to the decision in BONGO VS.GOVERNOR OF ADAMAWA STATE (2013) 2NWLR (Pt.1339) 403 at 444 where it was held that oral evidence is inadmissible either to add to or subtract from the contents of a document.
To buttress and reinforce this position learned counsel Mr. Esan quoted and referred to the remarks of the learned trial judge at page 8 of the judgment as now contained at page 69 of the record of appeal. He urged on the court to apply the decision in BONGO (supra) and decided this issue against the Appellant.
In his reply brief, learned counsel Mr. Laoye tried to point out that the Respondent had admitted that there are 2 buildings at No. 28 Segun Oriola street, Eleyele, Ibadan and is estopped from asserting to the contrary. He added that it was because of this assertion that a conflict in the affidavit evidence arose. According to the learned counsel whether it was one building or two buildings bequeathed to the Respondent is a very relevant and crucial issue that can only be resolved by oral evidence and not any reference to the will alone. He referred to s.116 of the Evidence Act and urged on the court to uphold his submissions and allow this appeal.
The 2nd issue for determination is closely linked with the first issue, I would therefore proceed further to highlight the various arguments and submissions of respective learned counsel on it after which I will venture to resolve the 2 together.
In arguing the 2nd issue for determination in this appeal, learned counsel Mr. Laoye remained emphatic that there are serious conflicts in the affidavits of the parties. He identified some of the paragraphs of the affidavits he believes are in material conflict. He then went on to point out that the only way the lower Court could resolve the conflicting averments is by allowing each party to call and lead oral evidence. He relied on the decisions in FALOBI VS. FALOBI (1976) 9 ‘E2’80” 10 SC 1, C. U. MBAJI & SONS LTD VS. A. I. AHUMANYA (2000) 8 NWLR (PT.669) 498 and urged on the Court to resolve this issue in favour of the Appellant and against the Respondent and to also allow this appeal and set aside the judgment of the lower Court.
Learned counsel Mr. Esan responded to the submissions of Mr. Laoye, of counsel by highlighting some of the admitted and established facts which remained undisputed. He identified what he considered the most relevant facts. Against this background, Mr. Esan, of counsel pointed out that there are material conflicts in the affidavits that would necessitate the ordering of the parties to file pleadings and to lead evidence on same.
He submitted and maintained that the will of the deceased testator was before the court and his intention was quite clear from it. While assuming, though without conceding, that even if there was any material conflict in the affidavit evidence oral evidence cannot be adduced to vary the content of the will. He referred to the decisions in NAGOGO vs. C.P.C. & ORS. (2013) 2 NWLR (PT.1339) 448, C.P.C. VS. LADO (2011) 14 NWLR (PT.1266) 40 at 90 AND IZE-IYAMU VS. ALONGE (2007) 6 NWLR (Pt. 1029) 84 at 117 and urged that this issue be resolved against the Appellant.
In resolving the issues in this appeal, it is important as a first step to settle some initial key issues. The main complaint of the Appellant in the grounds of appeal is on the mode of commencement of the action and the type of evidence relied on by the lower court in arriving at its decision. In addressing the issue, it is equally important to remember that the form and method of commencement of actions at the lower court has not been left entirely in the hands of parties. In some specific instances the parties had no options but to proceed in a particular manner only and no other at all.
As a general rule, it is by writ of summons that most actions are initiated, but other originating processes being resorted to have been specified in Rules of court, Rules of practice or statutes. The use of any form of commencement of actions must be the prescribed process to be used.
Where statutory or regulatory provisions have been made for making a claim, the procedure prescribed therein for it ought to be followed in making it. See KASOAP VS. KOFA TRADING CO. (1996) 2 SCNJ 325 at 334.
Learned counsel to the Respondent had referred to order 3 rule 5 of the Oyo State High Court Rules. I wish to reproduce it in full in case it may have some significance or impact in the determination of the issues in this appeal.
Order 3 rule 5
“5. Any person claiming to be interested under a deed, Will enactment or other written instrument may apply by Originating Summons for the determination of any question of construction arising under the instrument and for a declaration of the rights of the persons interested.”
In addition to this I wish to add Order 3 rules 6 and7.
Rule 6
“6. Any person claiming any legal or equitable right in a case where the determination of the question whether he is entitled to the right depends upon a question of construction of an enactment, may apply by Originating Summons for the determination of such question of construction and for a declaration
as to the right claimed.”
Rule 7
“7. A Judge shall not be bound to determine any such question of construction if in his opinion it ought not to be determined on Originating Summons but may make any such orders as he deems fit.”
The action leading to this appeal was, without any doubt, commenced by way of originating summons and it pertained to a claim relating to an interest in a Will. The very nature of an originating summons is to make things simpler for hearing. It is available to any person claiming interest under a deed, or will or other written instrument whereby he will apply for the determination of any question of construction arising under the instrument for the declaration of his interest. Against this background it would appear that because the cause of action in the matter on appeal arose from terms of a testamentary disposition of property in a Will, Order 3 rule 5 would have been the enabling provision to support the competence of the action as was expounded in the famous and evergreen case of MADUKOLU VS. NKEMDILIM (supra). The Supreme Court decision in KANO STATE OIL AND ALLIED PRODUCTS LTD. VS. KOFA TRADING CO. LTD emphasised the effect of an agreement by parties and a clause in it prescribing the method of enforcing that agreement. Though an action may have been commenced by way of originating summons and that mode of commencement may have been supported by law, as in the instant appeal, it is not unusual that given certain circumstances, the court may order that it crosses over to another method or mode of commencement of actions, mainly for the initial originating summons action, to be deemed as properly commenced as an action by way of writ of summons. Thereby parties would be ordered to file and exchange pleadings and subsequently lead oral and documentary evidence, if any, to prove or disprove the claim in the action. This well-known procedure is sanctioned, for example, by Order 3 rule 7 (supra).
The power under Order 3 rule 7 is a discretionary power. It is the power vested on the lower Court and the learned trial judge. Learned counsel to the Appellant had consistently argued that the lower court ought to have relied on this power to convert this action as one brought under the writ of summons procedure whereby parties would be ordered to file pleadings and lead evidence on them. The issue was duly canvassed and argued at the lower court but the learned trial judge was not convinced and saw no good reasons to order for parties to file pleadings.
It was his discretion to proceed as he deemed fit, provided his discretion under Order 3 rule 7 (supra) was exercised judicially and judiciously.
Where a trial court is vested with a discretionary power to exercise, this court is always very reluctant to interfere with the exercise of that power, except where upon a compliant it was satisfactorily shown that the power was not exercised judicially and judiciously. In BIOCON AGROOCHEMICALS (NIG.) LTD & ORS VS. KUDU LTD & ANOR (2000) 15 NWLR (Pt.691) 493, (2000) LPELR- 784 (SC) the Supreme Court decided that it is settled law that an appellate Court will not generally interfere with the exercise of discretion by a lower court unless it is shown that there has been a wrongful exercise of the discretion. Where the lower court acted under a misconception of law or under a misapprehension of fact in that it either gave weight to irrelevant facts or it omitted to take into account matters that are relevant, or where it exercised or failed to exercise the discretion on wrong or inadequate materials and in all other cases where it is in the interest interfere of justice to interfere.
In determining and deciding in favour of allowing originating summons procedure in this matter, the learned trial judge considered order 3 rule 5 and all the arguments of respective learned counsel and remarked as follows:
“It is very clear from the from the provisions of Order 3 rule 5 that a person seeking an interpretation or construction of the contents of a Will may apply to the court by Originating Summons as the claimant in this case has done. I have perused all the processes filed by both parties, I have no doubt in my mind that this case is solely and entirely about the interpretation or construction of clause (a) of the Last Will and Testament of Late Captain Oloyede. The interpretation or construction of that clause is the controversy between the parties. In resolving that controversy, the court must on the peculiar facts and circumstances of the confine itself to the contents of the Will. It is the contents of the Will and not the depositions or evidence of parties whether oral or by affidavit evidence that should guide the court in the interpretation or construction of the Will in this case.”
Before this remark, the learned trial judge had referred to order 5 rules 1 and 2 of the Oyo State High Court Rules and pointed out that learned counsel to the Appellant did not complain about the competence of the action in this appeal by filing the appropriate application envisaged under Order 5, but rather chose to raise the issue in the final address filed at the end of the evidence of the parties. But despite this seeming, or even apparent non-compliance with due process, the court still proceeded to determine the complaint on the appropriateness or otherwise of this action to proceed as an Originating Summons suit. Learned counsel to the Appellant has not shown, in the course of all his arguments and submissions, in any manner whatsoever, that in allowing the action to proceed as it did, the lower Court failed to exercise its discretion judicially and judiciously or that the Appellant suffered prejudice or miscarriage of justice howsoever.
It is also crystal clear that the lower court did not consider any irrelevant fact in arriving at its decision to allow the suit to proceed accordingly. Learned counsel has also failed to show in any respect that the interest of justice necessitates the interference of this Court with the exercise of the discretionary power of the lower Court. The discretion under Order 3 rule 7 (supra) belongs to the lower court, it is not for this court to usurp it and exercise it even if it was of the opinion that it could have been exercised otherwise, except the exercise was perverse or unreasonable.
The originating summons procedure is employed where the evidence in the main is by way of documents and there is no serious dispute as to their existence in the dealing of parties to the suit. See FAMFA OIL LTD. ATTORNEY GENERAL OF FEDERATION & ANOR (2003) 18 NWLR (PT.852) 453.
Further to this, where a matter is being tried on affidavit evidence and the court is confronted with conflicting or contradictory evidence relied on by the parties on a material issue before the court, the Court cannot resolve such conflict by evaluating the conflicting evidence to achieve the resolution of the conflict. See ARJAY LTD. VS. A.M.S. LTD. (2003) 7 NWLR (Pt.820) 577.
Against this difficulty, the law is settled and well defined that where affidavits of the parties conflict on every crucial, material and important aspect of the dispute between them, the conflict should be resolved by oral or some other evidence.
However, there is an exception to this general rule if the facts in conflict are flimsy, distractive, or generally irrelevant and immaterial, the court can disregard them and evaluate the evidence on both sides in order to resolve them. See the vintage decision in FALOBI VS. FALOBI which has consistently been by followed and applied as locus classicus on when to resort to oral evidence when faced with conflicting affidavit evidence. See also EZECHUKWU VS. ONWUKA (2006) 2 NWLR (PT.963) 151 at 196 TO 197 and DANA IMPEX LTD. VS. AWUKAM (2006) 3 NWLR (PT.968) 544 at 563.
Every case must be treated and determined or decided upon its peculiar facts and circumstances. Learned counsel to the Appellant had submitted as an issue for determination at the trial whether this action can be determined through an originating summons in view of what he considered the conflicting affidavit evidence in the matter. He consistently argued against the use of the extant affidavits and counter affidavits in this action both at the lower court and in his issue 2 in this court. In his reply brief learned counsel to the Appellant claimed that the Respondent had admitted that there are 2 houses at No. NW/82, Eleyele, Ibadan. He did not refer to any specific area of the affidavits where this so-called admission was made to empower this court to invoke the principles of law of evidence that what is admitted need no further proof. The submission of Mr. Laoye in that regard therefore remains highly untenable and of no moment.
In determining this issue, the learned trial judge referred to and considered the decision in OGUNDEPO VS. OLUMESAN (2011) 18 NWLR (PT.1278) 54 at 58, 69 E-G and 72 D-F where it was held that extrinsic evidence is in admissible to vary add, subtract or contradict the contents of a document, or other written instruments etc. This decision of the Supreme Court is anchored on the effect and application of Section 132 (1) of the Evidence Act. Upon this decision, the learned trial judge saw it as futile to order for parties to adduce oral evidence and also saw the issue in the matter to be so narrow as to involve the construction or interpretation of clause (a) of the will of Late Captain Oloyede only. I have read the decision of the Supreme Court in OGUNDEPO VS. OLUMESAN (supra), and I saw that it referred to its earlier decisions in UBA LTD VS. OZIGI (1994) 3NWLR (PT.333) 385 AND THOMPSON VS. AROWOLO (2003) 7 NWLR (PT.818) 163 to restate that the provisions of Section 132 (1) of the Evidence Act mean that where parties have embodied the terms of their relevant agreement into a written document, no extrinsic evidence is admissible to add to, subtract from or contradict the terms of such written instrument. I find this decision helpful and applicable to the facts and circumstances of this appeal. I have no hesitation whatsoever in agreeing with this decision of the learned trial judge. It is proper and very sound in the circumstance. There definitely would be no material conflicts or contradictions on material facts to warrant the rule in FALOBI VS. FALOBI to be invoked. I wish to add that the decision in FALOBI vs. FALOBI is not a “cure all medicine” that can be resorted to in at cases of conflict in affidavit evidence. The conflict to necessitate calling of oral evidence to resolve must be material conflict of material facts that cannot also be resolved from the entire paragraphs of the entire affidavits and counter affidavits in the matter or, if any, other evidence available through them such as documents attached thereto.
I have read and considered, especially paragraphs 7-14 of the main affidavit in support of the originating summons. They clearly appear a declaration of the correct state of affairs with respect to the estate of the late captain Oloyede. The Appellant had fully admitted its paragraphs 4, 5 and 9 as well as paragraph 8 in part. Paragraphs 7-10 of the main counter affidavit against the summons is a bold attempt by the Appellant to show that the late Captain Oloyede made part of the house he bequeathed to the Respondent to be family property. Also, paragraph 6 of this counter-affidavit totally introduced something novel to the Will by a suggestion that there are two houses at the same No. 28 Segun Oriola Street Eleyele, Ibadan. Paragraph (a) of the Will of Late Captain Oloyede refers to this address as “my house”. Against this background, and against all known rules of affidavits, I do not see any material conflict on material facts in the affidavits before the court. This conclusion is inescapable, in my view, because the Will is attached to the affidavit of the Respondent as Exhibit C.
It is therefore evidence in its own right and the lower court was entitled to consider its contents for a better understanding of what facts stand out as well established in the entire circumstances.
It is the law that it is not permitted in the interpretation or construction of a document that the exercise is done by a party either placing a gloss on it or importing or imputing into it terms not contained therein. And where the letters of a document are plain and unambiguous they should be given their plain and ordinary meaning.
For emphasis and effect clause (a), the subject of the claim in the instant appeal states:-
(a) “I devise and bequeatn my house NW7/82, Eleyele, Ibadan (also known as NO. 28 Segun Oriola Street Eleyele, Ibadan) to my wife Lawra Omomi Oloyede and her children”
In construing this clause, the lower Court observed:-
“That clause did not say whether the building infront or at the back is bequeathed, it says “My house NW7/82 Ibadan (also known as No.28, Segun Oriola Street, Eleyele Ibadan). Throughout the affidavits before this court, particularly the counter-affidavits, it is clear that the property NW7/82 or No. 28, Segun Oriola Street, comprises of two buildings. It is not stated anywhere that the two buildings has separate numbers. It is therefore obvious that the testator was referring to the entire property situate at NW7/82 Eleyele Ibadan, he did not separate the property hence the use of “my house”. The intention of the testator is made more clearer by the subsequent clauses.”
(see lines 28 to 9 at pages 71 to 72 of record of appeal).
And after considering the other clauses in the Will, the learned trial judge observed further that:-
“Where the testator did not what (sic)the entire property to go to a particular person or persons, he stated so clearly and went further to state the particular portion that goes to each persons. Where he wanted the house at the back in a property to go to a particular person(s), he stated so clearly. It is clear from the entire contents of the Will in this case that the testator did not mean to separate the property at NW7/82, if he wanted the house at the back to be a family house as contended by the defendants, the testator would have stated so as he did in respect of his property at No. 1, Abewela, Ile-Ife.
What the defendant wants this court to do is to import into the Will what is not there as against the clear intention of the testator which has been expressed in clear simple English Language. The courts have always emphasized the need to allow the intention of the testator to prevail especially in this case where there is no dispute so as to the validity and authenticity of the Will.”
(see lines 12 to 26 at page 73 of record of appeal).
I have considered these observations of the learned trial judge and I am unable to agree with learned counsel to the Appellant that the findings made further to these remarks and the final decision leading to the judgment could be erroneous or faulty. I would rather uphold them as sound and proper in the circumstance. In consequence of this the 2 issues formulated for the determination of this appeal are hereby resolved against the Appellant and in favour of the Respondent. This appeal is dismissed for lacking in merit. The judgment of the Oyo State High Court delivered on 30/04/2013 in suit no. 1/205/2013 is upheld and affirmed. I make no order for costs.
MUDASHIRU NASIRU ONIYANGI, J.C.A.: I have had the opportunity of reading in draft the lead judgment of my learned brother Ali Abubakar Babandi Gumel, JCA just delivered. I entirely agree. For the same reason so eloquently and comprehensively set out in the aforesaid judgment, I also resolve the two issues formulated for determination against the appellant and in favour of the respondent.
The appeal is dismissed for lacking in merit. In consequence, I also uphold and affirm the judgment of the Oyo State High Court delivered on 30/4/2013 in Suit No. 1/205/2010. There shall be no order for cost.
NONYEREM OKORONKWO, J.C.A.: I have read the draft of the judgment just delivered by my learned brother Ali Abubakar Babandi Gumel JCA, wherein my lord, upon appraisal of the judgment of the High Court of Oyo State in relation to the will of late Captain Rufus Olaniyi Oloyede, affirmed that judgment and dismissed the appeal against it.
In the construction of wills of deceased persons, the courts are always concerned to give effect to the intention of a deceased testator and the golden rule adopted by courts have been to give literal meaning to the words used. In order to avoid confusion arising from con, the courts also evolved the mode of originating summons as appropriated mode for interpretation of will, deeds, statue and other such solemn instruments.
Such methods eliminate unnecessary contest and leaves the court with the bare words which they construe and then apply to the factual situation in con.
This is the appraisal that my lord Gumel has done in relation to the judgment of the High Court. I agree with his reasoning and abide by them.
Appearances
Mr. Luqman LaoyeFor Appellant
AND
Mr. Olayinka EsanFor Respondent
