LawCare Nigeria

Nigeria Legal Information & Law Reports

JOSEPH OLUSANYA ISIJOLA v. HON. ATTORNEY GENERAL AND COMMISSIONER FOR JUSTICE, ONDO STATE & ANOR (2019)

JOSEPH OLUSANYA ISIJOLA v. HON. ATTORNEY GENERAL AND COMMISSIONER FOR JUSTICE, ONDO STATE & ANOR

(2019)LCN/13725(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 31st day of July, 2019

CA/AK/266/2017

 

JUSTICES

OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria

MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria

RIDWAN MAIWADA ABDULLAHI Justice of The Court of Appeal of Nigeria

Between

JOSEPH OLUSANYA ISIJOLA Appellant(s)

AND

1. HON. ATTORNEY GENERAL AND COMMISSIONER FOR JUSTICE, ONDO STATE
2. ADMINISTRATOR GENERAL AND PUBLIC TRUSTEE, ONDO STATE Respondent(s)

RATIO

WHETHER OR NOT THE COURT CAN MAKE SUBSEQUENT ORDER ON A STRUCK OUT MATTER

The correct position of the law regarding a struck out matter including a counter-claim, as in the instant matter, is that, the Court lacks the requisite jurisdiction to make any subsequent order on it. What this means is that, a matter that has been struck out is discontinued, albeit the matter can be brought back before the Court when an application to relist has been filed, argued and accordingly granted. See the cases of: (1) SPDC & Ors. v. Agbara & Ors. (2015) LPELR-25987 (SC); (2) Lafferi (Nig.) Ltd. & Anor. V. NAL Merchant Bank Plc & Anor. (2015) LPELR-24726 (SC); (3) Panalpina World Transport (Nig.) Ltd. V. J. B. Olandeen International & Ors. (2010) LPELR-2902 (SC); (4) Akinbobola & Sons v. Plisson Fizko Nig. Ltd. & 2 Ors. (1991) 1 NWLR (Pt. 167) p. 270 at p. 288 and (5) Nigeria Airways Ltd. v. Lapite (1990) LPELR-1998 (SC). PER OMOLEYE, J.C.A.

THE FUNDAMENTAL NATURE OF JURISDICTION

The law is rock solid that the issue of jurisdiction of a Court to adjudicate over matters is very pivotal. The word ?jurisdiction? simply means, the authority which a Court has to decide matters brought before it or take cognizance of matters presented to it in a formal way for its decision. In the case of: Egharevba v. Eribo (2010) 9 NWLR (Pt. 1199) p. 411, the Supreme Court succinctly restated again the meaning and fundamental nature of jurisdiction of Court in the following words:
Jurisdiction is a term of comprehensive import embracing every kind of judical action. It is the power of a Court to decide a matter in controversy and presupposes the existence of a duly constituted Court, with control over the subject-matter and the parties. Jurisdiction also defines the power of the Court to inquire into facts, apply the law, make decisions and declare judgments. It is the legal right by which judges exercise their authority. Jurisdiction is to a Court what a door is to a house. The question of a Court?s jurisdiction is called a threshold issue because it is at the threshold of the temple of justice. Jurisdiction is a radical and fundamental question of competence, for if the Court has no jurisdiction to hear the case, the proceedings are and remain a nullity, however well conducted and brilliantly decided they might have been. A defect in competence is not intrinsic but rather extrinsic to adjudication. Oloba v. Akereja (1988) 3 NWLR (Pt. 84) 508; Oloriode v. Oyebi (1984) 1 SCNLR 390; Ezomo v. Oyakhire (1985) 1 NWLR (Pt. 2) 105; Petrojessica Ent. Ltd. v. Leventis Technical Co. Ltd. (1992) 5 NWLR (Pt. 244) 675; Barclays Bank v. C.B.N. (1976) 6 SC 175; African Newspapers (Nig.) Ltd. v. F.R.N. (1985) 2 NWLR (Pt. 1006) 608; A. ?G., Anambra State v. A. ?G., Fed. (1993) 6 NWLR (Pt. 302) 692; Saleh v. Monguno (2003) 1 NWLR (Pt. 801) 221. (The underlining is supplied by me for emphasis) In the ?locus classicus? case of: Madukolu v. Nkemdilim (1962) 1 All NLR p. 587, Bairaman FJ, laid down the conditions, which have become the leading light in matters of jurisdiction or the competence of a Court to adjudicate as follows:
A Court can only be competent when (i) it is properly constituted as regards the numbers and qualification of the members of the bench and no member is disqualified for one reason or another; and (ii) the subject-matter of the case is within its jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction; and (iii) the case comes before the Court initiated by due process of law, and upon the fulfillment of any condition precedent to the exercise of jurisdiction. Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided, the defect is extrinsic to the adjudication. (The underlining is supplied by me for emphasis).
See also the case of: Ohakim v. Agbaso (2010) 19 NWLR (Pt. 1226) p. 172 at pgs. 243 ? 244, paras. H-B. PER OMOLEYE, J.C.A.

THE BURDEN AND STANDARD OF PROOF IN CIVIL CASES

In civil cases of which the instant case is a specie, the burden of first proving the existence or non-existence of a fact lies on the party against whom the judgment of the Court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings ?
See Section 137(1) of the Evidence Act. If such party adduces evidence which ought reasonably to satisfy the Judge that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced and successively, until all the issues in the pleadings have been dealt with. Hence, the burden of first proving a fact is usually on the plaintiff who brought the action, though not invariably so. There are times when the burden is on the defendant, depending on the state of the pleadings. Therefore, it is valid law that the state of the pleadings materially determines the party who has the burden of proof. In essence, unlike the position in criminal cases where the burden of proof statically resides on the prosecution to establish the case brought against the defendant, the burden of proof in civil cases is not static on the plaintiff but it shifts from time to time depending on the pleadings of the parties. The law is equally settled that, in a criminal case or even in a civil case involving an imputation of crime, the standard of proof is proof beyond reasonable doubt, but in a civil case, the standard of proof is on the preponderance of evidence. In either case, the prosecution or plaintiff or claimant needs not call every available piece of evidence or witness to prove its/his case. It is enough

35

if sufficient credible evidence is adduced to discharge the burden of proof. Preponderance of evidence simply means one side’s position outweighing the other side when put on the imaginary scale of justice which must be evenly held by the Judge. On these legal principles, see the cases of: (1) Dibiamaka v. Osakwe (1989) 3NWLR (Pt. 107) p.101 at p.113; (2) Onwuka v. Omogui (1992) 3SCNJ p.98; (3) Akinkugbe v. E.H. (Nig.) Ltd. (2008) 12 NWLR (Pt. 1098) p.375; (4) Aliucha v. Elechi (2012) LPELR- 7823(SC) and (5) Ayorinde v. Sogunro (2012) LPELR – 7808(SC). PER OMOLEYE, J.C.A.

OYEBISI FOLAYEMI OMOLEYE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the High Court of Ondo State, sitting in Akure, presided over by T. A. Osoba, CJ Ag. (hereinafter referred to as ?the trial Court?) delivered on the 10th of May, 2017 in Suit No. AK/118/2010.

?The background facts of this matter from the perspective of the Appellant are that, prior to the initiation of the action the subject of this appeal, the Appellant who is the eldest son of his deceased father, one Chief Joseph Jose Oyewole Isijola had earlier on obtained in his favour the decision of the High Court of Ondo State, not the trial Court, delivered on 6th of August, 2009 in Suit No. AK/137/2005. The lynchpin of the said decision is the declaration for the redistribution of the intestate properties of the Appellant?s deceased father amongst the latter?s living children (including the Appellant), that is, by ?Ori Ojori? method according to Yoruba native law and custom taking into consideration the Akure custom and tradition. Subsequent to the said decision but before the distribution of the

1

estate, some elders in the family of the Appellant?s deceased father, on behalf of the other perceived beneficiaries under the estate of the deceased, submitted the administration of the said estate to the 2nd Respondent who subsequently obtained Letters of Administration for the distribution of the estate amongst all the beneficiaries thereunder. However, the Appellant was neither carried along nor involved in the process leading to the grant of the Letters of Administration. Therefore, the Appellant as plaintiff filed the action the subject of this appeal against the 1st and 2nd Respondents, along with two elders of the Appellant?s deceased father?s family, as defendants, at the trial Court and claimed against them per his Writ of Summons and Further Amended Statement of Claim as follows:
1. A DECLARATION that the Judgment of Honourable Justice O. Akintan – Osadebay delivered on 6/8/09 in respect of the estate of deceased Joseph Isijola is valid and subsisting.
?2. A DECLARATION that the grant of the Letters of Administration dated 4/3/2010 in respect of the estate of deceased Chief Joseph Jose Oyewole Isijola is a contravention

2

of the order of redistribution as contained on the judgment of Hon. Justice O. Akintan – Osadebay delivered on 6/8/2009.
3. A DECLARATION that the Letters of Administration dated 4/3/2010 granted in contravention of the order of redistribution of the estate of deceased Chief Joseph Jose Oyewole Isijola as contained in the judgment of Hon. Justice O. Akintan – Osadebay delivered on 6/8/2009 is NULL and VOID.
4. AN ORDER SETTING ASIDE the said Letters of Administration dated 4/3/2010 granted to the 2nd Defendant in respect of the estate of deceased Chief Joseph Jose Oyewole Isijola.
5. AN ORDER for the payment of the sum of N1.5million being the professional legal fees incurred by the Claimant in instituting this action.
6. PERPETUAL INJUNCTION restraining the Defendants either by themselves, their agents, servants, officials or privies from acting upon or giving any effect whatsoever to the Letters of Administration dated 4/3/2010.

During the pendency of the action, the 3rd defendant died and the 4th defendant who appeared uninterested in the matter was not represented by counsel.

?At the trial Court, after the filing and

3

exchange of pleadings by the parties, the case proceeded to trial. In his bid to establish his claims, the Appellant gave evidence and tendered some couples of documentary evidence but did not field any additional witness. While in defence of the action against them, the Respondents fielded two witnesses and also tendered some documentary evidence. At the close of the cases for the respective parties, their counsel?s written addresses were duly filed, exchanged and adopted on the 1st of March, 2017.

It is trite to state that, the Respondents in response to the action of the Appellant against them, in their Further Amended Statement of Defence filed on the 26th of January, 2010 also counter-claimed against the Appellant as follows:
(a) All the expenses incurred in the course of administering the estate.
(b) A DECLARATION that the 1st and 2nd Defendants are entitled to All statutory charges and dues deductible from the estate.
(c) AN ORDER compelling the claimant to give a comprehensive account of all the rents collected and other benefits derived from the estate by the Claimant since the death of the deceased.

?However, on

4

the 10th of March, 2016, the counter-claim of the Respondents was ?inter alia? struck out for lack of diligent prosecution – see page 222 of the Record of Appeal for the proceedings and order of the trial Court on the said date.

In the considered judgment of the trial Court delivered on the 10th of May, 2017, it was held that the action of the Appellant succeeded in part. While all the reliefs counter-claimed by the Respondents were granted.

The Appellant being dissatisfied with the said judgment of the trial Court filed this appeal against it to this Court ?vide? his Notice of Appeal of three grounds of appeal dated and filed on the 11th of May, 2017. For good grasp and easy referencing, the three grounds of appeal with their particulars are hereunder set out as follows:
GROUNDS OF APPEAL
1. The learned trial Judge erred in law in granting the reliefs sought by the Respondents in their Counter-Claim which Counter-Claim the Honourable Court had long struck out for lack of diligent prosecution.
PARTICULARS
?i. By their Further Amended Statement of Defence dated 4th of December, 2015 and filed on

5

26th of January, 2016 the Respondents in paragraph 14 thereof Counter-Claimed inter alia:
?(a) All expenses incurred in the course of administering the estate.
(b) A declaration that the 1st & 2nd Defendants are entitled to all statutory charges and dues deductible from the estate.
(c) An Order compelling the Claimant to give a Comprehensive account of all the rents collected and other benefits derived from the estate by the Claimant since the death of the deceased.?
ii. On the 10th of March 2016, due to lack of diligent prosecution, the learned trial Judge struck out the Counter-Claim of the Respondents, leaving only their Statement of Defence.
iii. Nonetheless, the learned trial Judge in his well considered judgment delivered on the 10th of May, 2017 granted all the reliefs sought in the Counter-Claim that were no longer before the Court and defining any issue between the parties as it had long been struck out.
iv. A Court process already struck out for whatever reason is no longer of any relevance for consideration by the Court.
v. Courts are not Father Christmas.
?vi. The grant of the

6

Counter-Claim is not only prejudicial to the Appellant but has also occasioned serious miscarriage of justice.
2. The learned trial Judge erred in law when he held that the Letters of Administration was regularly obtained and therefore, valid and effective in the glaring face and unequivocal admission of the Respondents that the Letters of Administration be revoked and the Judgment in Suit No. AK/137/2005 be implemented.
PARTICULARS
i. In paragraph 30 (4) of the Further Amended Statement of Claim dated and filed 18/11/14 the Claimant claims as follows:
?AN ORDER setting aside the said Letters of Administration dated 4/3/2010 granted to the 2nd Defendant in respect of the estate of the deceased, Chief Joseph Jose Oyewole Isijola.?
ii. The Respondents in paragraph 12 of the Further Amended Statement of Defence dated 4/12/2015 and filed 16/1/16 aver as follows:
The 1st and 2nd Defendants concede the revocation of the Letters of Administration granted them in respect of this estate and urge this Honourable Court to order the immediate execution of the judgment delivered by Hon. Justice Akintan O. Osadebay

7

in Suit No: AK/137/2005.?
iii. In paragraph 8 of the Written Statement on Oath, the evidence in Chief of the Respondents? witness, Mr. Oladipupo Omotosho Kola he admitted that the Letters of Administration be revoked as pleaded and urged that ?this Honourable Court to order the immediate execution of the Judgment delivered by Hon. Justice Akintan O. Osadebay in Suit No: AK/137/2005.?
iv. Under cross-examination this same witness affirmed this evidence in Chief.
v. An admitted fact in the pleading needs no further proof.
vi. In his final written address dated and filed 3/2/2017 the Respondents? Counsel placed reliance on the admission of his clients which needs no further proof, and in the Respondents bid, according to the Counsel, ?to facilitate an out of Court settlement of this matter so that the properties could be distributed in line with the judgment Exhibit C.?
?vii. It is within the jurisdiction of the Honourable Court and as enjoined by the Rules of Court, Order 19 Rule 4 without more, to enter judgment on the unequivocal admission of the Respondents that the Letters of Administration

8

be revoked (set aside)
3. The judgment is against the weight of evidence.

In obedience to the Rules of practice of this Court, briefs of argument were filed and exchanged by the counsel for the parties. Chief F. Omotosho, of the law firm of Wale F. Omotosho & Co. Counsel for the Appellant, filed two briefs for the Appellant. The main Appellant?s Brief dated and filed on the 5th of April, 2018 was deemed properly filed on the 7th of March, 2019. Further, in response to the brief of the Respondents, an Appellant?s Reply Brief dated and filed on the 12th of February, 2019 was deemed properly filed also on the 7th of March, 2019. In the main brief of the Appellant, the two issues redacted for the determination of the appeal read as follows:
1. Whether the trial Court was right by granting reliefs sought by the Respondents in their Counter Claim which Counter Claim the trial Court had previously struck out?
2. Whether the trial Court was right in determining and resolving fact in issue admitted by the Respondents?

On the other part, the Respondents? Counsel, Mrs. O. I. Adejumo, Administrator General

9

and Public Trustee, of the Attorney General?s Chambers, Ministry of Justice, Ondo State, settled the Respondents? Brief dated 24th of October, 2018, filed on 25th of October, 2018 but deemed properly filed on the 7th of March, 2019. The two issues identified, for the resolution of the appeal by the Respondents? Counsel read as follows:
i. Whether the judgment of the trial Court is sustainable without the Respondents? Counter-Claim?
ii. Whether in spite of the Respondents? admission, the decisions of the trial Court are consistent with substantial justice as against technicalities in the light of the Appellant?s oppressive and contemptuous conduct?

At the oral hearing of the appeal on the 20th of June, 2019 the learned counsel for the parties identified and adopted the submissions proffered in substantiation of their opposing stances in the appeal as contained in the parties? respective briefs of argument. They accordingly urged this Court in that regard.

?It is pertinent to state at this juncture that, the Appellant failed to distill any issue for determination from ground three of his

10

Notice of Appeal. The law is on firm footing that, appeals are determined on the issues distilled from the competent grounds of appeal raised against the judgment of the lower Court appealed, therefore, where no issue is distilled from any ground of appeal, such a ground of appeal is deemed abandoned and liable to be struck out. See the cases of: (1) Galadima v. State (2017) LPELR-43469 (SC); (2) P.D.P. v. I.N.E.C. (2014) 17 NWLR (Pt. 1437) p. 525; (3) Wassah & Ors. v. Kara & Ors. (2014) LPELR-24212 (SC); (4) Ngilari v. Mothercat Limited (1999) LPELR-1988 (SC) and (5) Ogundiyan v. State (1991) LPELR-2333 (SC). In the instant matter, as no issue for determination was distilled from Ground Three of the Appellant?s Notice of Appeal, the said Ground Three has lost the essence of its existence and is hereby struck out accordingly.

Furthermore, the Appellant?s Counsel in the Appellant?s Reply Brief pointed out that, Issue One purportedly distilled by the Respondents? Counsel from Ground One of the Appellant?s Notice of Appeal is incompetent. For the said Issue One in the Respondents? brief does not relate to or

11

arise from the said Ground One of the Notice of Appeal. I have already set out both the said Issue One and Ground One earlier on above in this judgment. I have perused the said Issue One and the arguments proffered thereunder in paragraphs 4.00 to 4.21 contained in pages 4 to 9 of the Respondents? Brief of Argument. I am at one with the observation of the Appellant?s Counsel that, the said Issue One and the arguments proffered thereunder have no iota of bearing on Ground One of the Notice of Appeal. The crux of Ground One of the Notice of Appeal is, whether the trial Court was correct in law in granting all the reliefs sought by the Respondents in their counter-claim notwithstanding that the said counter-claim had been struck out for want of diligent prosecution even before the action proceeded to trial. The Respondents? Counsel failed to advert to the subject, other than in paragraph 4.17 at page 8 of the Respondents? brief where it was conceded that the learned trial Court indeed erred in adverting to the counter-claim of the Respondents in its judgment having earlier on struck out the same for want of diligent prosecution. The law is

12

also trite that, issues formulated by a respondent for determination must flow from and relate to the competent grounds of appeal of the appellant. Although, for the respondent to validly raise any issue not related to the grounds of appeal filed by the appellant, he, that is, the respondent, must file a cross appeal or respondent?s notice. Hence, if a respondent?s issue is not related to a particular ground of appeal and no respondent?s notice or cross appeal was filed as in the instant matter, then the issue is without roots, baseless, irrelevant and inconsequential. Concomitantly, any argument in the brief purportedly proffered in support of such an issue will be discountenanced by the Court. In the case of: Ekiti State House of Assembly & Ors. v. Fayose & Ors. (2009) LPELR-4089, this Court per Augie, JCA (as he then was, now JSC) had the following to say on this topic:… Dr. Fayose is a Respondent, and he is allowed to adopt the Appellant?s issues or give them a slant in his favour – see Wilbros (Nig.) Ltd. v. A.G. Akwa Ibom (2008) 5 NWLR (Pt.1081) 484. The only reservation is that any issue

13

formulated by the Appellant or Respondent must be based on the Ground(s) of Appeal filed, otherwise it would be incompetent and therefore discountenanced. – see Ibator v. Barakuro (2007) 9 NWLR (Pt. 1040) 475 SC.
See also the cases of: (1) Skye Bank Nig. v. Seph Investment Ltd. & Ors. (2016) LPELR-40296 (CA), cited and relied upon by the Appellant?s counsel; (2) Amadi v. A.-G., Imo State (2017) LPELR-42013 (SC); (3) Nweze v. State (2017) LPELR-42344 (SC) and (4) Nwaosu v. Nwaosu (1999) LPELR-10110 (CA). As stated above, the Respondents did not file either a cross appeal or Respondents? notice upon which their Issue One could be hinged and since the said Issue One is unrelated to Ground One of the Appellant?s notice of appeal, it has no foundation and is lacking in competence. It behoves me to and I hereby strike out Issue One, purportedly distilled by the Respondents from Ground One of the Appellant?s notice of appeal, for being incompetent. Consequentially, all the submissions aimed at buttressing the said Issue One under paragraphs 4.00 to 4.21 at pages of 4 to 9 of Respondents? brief of argument are of no moment and

14

equally discountenanced by me.

I will now proceed to consider and resolve on their merits the two issues distilled from the remaining grounds one and two of the Appellant?s notice of appeal, seriatim.
ISSUE ONE
Whether the trial Court was right in granting the reliefs sought by the Respondents in their counter claim, the trial Court having previously struck out same?

APPELLANT?S COUNSEL?S SUBMISSIONS
The learned counsel stated that, in the course of the proceedings on 10th March, 2016, when the trial Court called upon the Respondents to proceed with their Counter Claim, Mr. Olafimihan the Respondents? Counsel said he was not ready. Thus, due to lack of diligent prosecution, the Court justifiably struck out the Counter-Claim of the Respondents. Learned Counsel for the Appellant noted that the Respondents? Counter-Claim was not relisted at any time throughout the rest of the proceedings. The effect of the striking out of the Counter-Claim by the trial Court is, the termination of the life span of the Counter-Claim permanently. On this point, he referred to the case of: The Young Shall Grow Motors Ltd. v. Okonkwo ?

15

(2010) All FWLR (Pt. 528) p. 803 at p. 814. Counsel argued that the learned trial Judge was devoid of power to make the orders he made on the Counter-Claim that had already been struck out. In this wise, he referred to the case of: SPDC & Ors. v. Agbara (2016) 2 NWLR (Pt. 1496) p. 353 at p. 411, paras. D – E. For, the correct position of the law regarding a struck out matter is that, the Court lacks jurisdiction to make any subsequent order on it.

However, notwithstanding the striking out of the Counter-Claim, the trial Court, in its judgment in the case went ahead to identify the Respondents? Counter-Claim as one of the issues to be determined by it. Issue number 5 formulated by the trial Court was centred on, whether the Counter-Claim of the Respondents can succeed in the light of the circumstances of the entire case.

RESOLUTION
As stated at the debut of this judgment, the Respondents in their Further Amended Statement of Defence, dated the 4th day of December, 2015 filed on the 26th day of January, 2016, counter-claimed and sought three reliefs against the Appellant ? See pages 137 to 139, particularly

16

paragraphs (14) (a) to (c) at page 139 of the record of appeal for the said counter-claim. For easy referencing and good grasp, the three reliefs counter-claimed are hereunder reproduced as follows:
(a) All the expenses incurred in the course of administering the estate.
(b) A DECLARATION that the 1st and 2nd Defendants are entitled to All statutory charges and dues deductible from the estate.
(c) AN ORDER compelling the claimant to give a comprehensive account of all the rents collected and other benefits derived from the estate by the Claimant since the death of the deceased.

As rightly indicated by the learned counsel for the Appellant and conceded to by the Respondents? learned counsel, the above reproduced counter-claim of the Respondents was struck out by the trial Court on 10th of March, 2016 prior to the opening of the case of the Appellant ? see page 222 of the record of appeal for the proceedings of that date. The counter-claim of the Respondents had obviously previously been adjourned to that date for hearing but because the Respondents? counsel was not ready for its hearing, the said counter-claim

17

was struck out for lack of diligent prosecution.

I have perused the subsequent proceedings of the trial Court as contained in the cold record of appeal, before the judgment in the case was delivered on the 10th of May, 2017, there is no place therein where the said order of striking out of the counter-claim was set aside and the counter-claim re-listed in the hearing cause list of the trial Court. It is to be noted that, the learned trial Judge did not state in the judgment of the trial Court contained in pages 236 to 257 of the record of appeal, that the Respondents filed an application to relist their counter-claim. Rather, the learned trial Judge at page 237 of the same record of appeal referred to the counter-claim of the Respondents as having been filed on the 10th of February, 2016. However, no reference was made to the striking out of the counter-claim in the said judgment. It is therefore not unexpected that the learned trial Judge went ahead to formulate his fifth issue for determination based on the counter-claim. See page 255 of the record of appeal for the fifth issue which states as follows:
ISSUE 5:
?Whether the counter-claim

18

of the 1st and 2nd Defendants can succeed in the light of the circumstances of their case? ….

Sequel to the consideration of the above issue, the trial Court went ahead to grant all the three reliefs sought under the said counter-claim and ordered accordingly as can be gleaned from Orders (4), (5) and (6) made in the said judgment of the trial Court – see page 257 of the record of appeal.

The correct position of the law regarding a struck out matter including a counter-claim, as in the instant matter, is that, the Court lacks the requisite jurisdiction to make any subsequent order on it. What this means is that, a matter that has been struck out is discontinued, albeit the matter can be brought back before the Court when an application to relist has been filed, argued and accordingly granted. See the cases of: (1) SPDC & Ors. v. Agbara & Ors. (2015) LPELR-25987 (SC);

19

(2) Lafferi (Nig.) Ltd. & Anor. V. NAL Merchant Bank Plc & Anor. (2015) LPELR-24726 (SC); (3) Panalpina World Transport (Nig.) Ltd. V. J. B. Olandeen International & Ors. (2010) LPELR-2902 (SC); (4) Akinbobola & Sons v. Plisson Fizko Nig. Ltd. & 2 Ors. (1991) 1 NWLR (Pt. 167) p. 270 at p. 288 and (5) Nigeria Airways Ltd. v. Lapite (1990) LPELR-1998 (SC).
The law is rock solid that the issue of jurisdiction of a Court to adjudicate over matters is very pivotal. The word ?jurisdiction? simply means, the authority which a Court has to decide matters brought before it or take cognizance of matters presented to it in a formal way for its decision. In the case of: Egharevba v. Eribo (2010) 9 NWLR (Pt. 1199) p. 411, the Supreme Court succinctly restated again the meaning and fundamental nature of jurisdiction of Court in the following words:
Jurisdiction is a term of comprehensive import embracing every kind of judical action. It is the power of a Court to decide a matter in controversy and presupposes the existence of a duly constituted Court, with control over the subject-matter and the parties. Jurisdiction also defines

20

the power of the Court to inquire into facts, apply the law, make decisions and declare judgments. It is the legal right by which judges exercise their authority. Jurisdiction is to a Court what a door is to a house. The question of a Court?s jurisdiction is called a threshold issue because it is at the threshold of the temple of justice. Jurisdiction is a radical and fundamental question of competence, for if the Court has no jurisdiction to hear the case, the proceedings are and remain a nullity, however well conducted and brilliantly decided they might have been. A defect in competence is not intrinsic but rather extrinsic to adjudication. Oloba v. Akereja (1988) 3 NWLR (Pt. 84) 508; Oloriode v. Oyebi (1984) 1 SCNLR 390; Ezomo v. Oyakhire (1985) 1 NWLR (Pt. 2) 105; Petrojessica Ent. Ltd. v. Leventis Technical Co. Ltd. (1992) 5 NWLR (Pt. 244) 675; Barclays Bank v. C.B.N. (1976) 6 SC 175; African Newspapers (Nig.) Ltd. v. F.R.N. (1985) 2 NWLR (Pt. 1006) 608; A. ?G., Anambra State v. A. ?G., Fed. (1993) 6 NWLR (Pt. 302) 692; Saleh v. Monguno (2003) 1 NWLR (Pt. 801) 221. (The underlining is supplied by me for emphasis)

?21

In the ?locus classicus? case of: Madukolu v. Nkemdilim (1962) 1 All NLR p. 587, Bairaman FJ, laid down the conditions, which have become the leading light in matters of jurisdiction or the competence of a Court to adjudicate as follows:
A Court can only be competent when (i) it is properly constituted as regards the numbers and qualification of the members of the bench and no member is disqualified for one reason or another; and (ii) the subject-matter of the case is within its jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction; and (iii) the case comes before the Court initiated by due process of law, and upon the fulfillment of any condition precedent to the exercise of jurisdiction. Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided, the defect is extrinsic to the adjudication. (The underlining is supplied by me for emphasis).
See also the case of: Ohakim v. Agbaso (2010) 19 NWLR (Pt. 1226) p. 172 at pgs. 243 ? 244, paras. H-B.
Consequent upon the foregoing elucidations, I hold that the learned trial Judge was derobed of

22

the requisite jurisdiction to adjudicate upon the counter-claim of the Respondents having previously struck out same. Hence, the orders made by him sequel to the consideration of same having been made without jurisdiction amount to a nullity and are liable to be set aside. See the cases of: (1) PDP & Ors. v. Ezeonwuka & Anor. (2017) LPELR-42563 (SC); (2) VAB Petroleum Inc. v. Momah (2013) 14 NWLR (Pt. 1374) p. 284; (3) Eke v. Ogbonda (2006) 18 NWLR (Pt.1012) p. 506 and (4) Nwoko v. Azekwo & Ors. (2012) 12 NWLR (Pt. 1313) p. 151.

It is patent from the foregoing elucidations that, issue one ought to be and is hereby resolved in favour of the Appellant and against the Respondents.
ISSUE TWO
Whether the trial Court was right in determining and resolving the fact in issue which had been admitted by the Respondents?

APPELLANT?S COUNSEL?S SUBMISSIONS
Learned counsel submitted that an admission is the clearest proof of any fact in issue in an action between parties. Once an admission is clear, unequivocal and not based on a misapprehension of any fact, it is binding on the maker. On this legal principle, he

23

referred to the cases of: (1) Al-Hassan v. Ishaku (2016) 10 NWLR (Pt. 1520) p. 230 at p. 299 and (2) Egbunike v. ACB Ltd. (1995) 2 NWLR (Pt. 375) p. 34 at p. 53, paras. D ? F. Therefore, where a fact is admitted by a defendant, the burden of proving it is taken off the shoulders of the plaintiff. He relied on the case of: Rilwan & Partners v. Skye Bank Plc (2015) 1 NWLR (Pt. 1441) p. 437 at 461, paras. B ? C.

On the major issue for determination in the Appellant?s action against the Respondents, the Appellant, expressly in paragraph 30(4) of his Further Amended Statement of Claim, sought for the order of the trial Court setting aside the Letters of Administration granted to the 2nd Respondent in respect of the estate of the Appellant?s deceased father, Chief Joseph Jose Oyewole Isijola. However, in paragraph 12 of their Further Amended Statement of Defence the Respondents averred unequivocally that they concede to the revocation of the said Letters of Administration granted them in respect of deceased?s estate and urged the trial Court to order the immediate execution of the judgment delivered by Hon. Justice O.

24

Akintan-Osadebay in Suit No: AK/137/2005, regarding the distribution of the estate. The admission of the Respondents was not only limited to their pleadings as stated above, but the Respondents further adduced evidence in support of same. DW2, Mr. Oladipupo Omotosho Kola, during his examination-in-chief and also under cross-examination, affirmed the admission by stating that the Letters of Administration granted to the 2nd Respondent should be revoked by the trial Court.

There is no doubt that this is an admission against interest. The admission that the Respondents conceded to the revocation of the Letters of Administration did not only vindicate the material evidence before the trial Court, it also reflect the legal position on the facts in issue. Hence, the Appellant is entitled to rely on the Respondents? fact in issue admitted against the interest of the Respondents, which defeats the Respondents? initial claim justifying the grant of the Letters of Administration. He referred in this wise to the cases of: (1) Odutola v. Papersack Nig. Ltd. (2007) All FWLR (Pt. 350) p. 1235; (2) Ali v. U.B.A. (2015) All FWLR (Pt. 771) p. 1482 and (3)

25

Ipinlaiye II v. Olukotun (1996) 6 NWLR (Pt. 771) p. 1482.

Therefore, with the admission of the Respondents, the fact in issue requires no further proof. To that extent, it is within the competence of the trial Court to enter judgment for the Appellant on the unequivocal admission of the Respondents and make an order revoking the Letters of Administration. This is the purport of Order 19 Rule 4 of the Ondo State High Court (Civil Procedure) Rules, 2012.

It was contended by counsel that, a close perusal of the entire judgment of the trial Court in this case would readily reveal that the learned trial Judge did not as a matter of fact or law advert to and deal with the express admission of the Respondents by their concession to the revocation of the Letters of Administration, the central core issue for determination in the case. Rather than deal with the admission the trial Court went into the determination of the proprietiness of the Letters of Administration and thereby arrived at a decision that it was regularly issued and was not in contravention of the extant judgment in Suit No: AK/137/2015.
?
Learned counsel submitted that from the pleadings

26

and evidence of the parties, it is undoubtedly clear that the fact in issue in this case is the procurement of the Letters of Administration by the Respondents following the application by the elders of the family of the deceased Joseph Jose Isijola who died intestate without the involvement of the Appellant. What is more, the Appellant apart from the admission of the Respondents, sufficiently discharged the burden of proof on him as required in any declaratory action where proof is based on balance of probabilities or on preponderance of evidence. The Appellant led evidence in line with his pleadings in proof of the fact that the Letters of Administration was applied for and obtained without his consent. After all, burden of proof is not static, considering the pleadings and evidence in a matter as in this instant appeal. On this stance, he referred to the cases of: (1) Onisaodu v. Elewuju (2006) 13 NWLR (Pt. 998) p. 517 at pgs. 521-528; (2) Onobruchere v. Esegine & Anor. (1986) 1 NWLR (Pt. 19) p. 799 at p. 806 and (3) Bunge v. Gov. Rivers State (2006) 12 NWLR (Pt. 995) p. 573 at 601, para. D.
?
Hence, the evaluation and findings by the trial Court that

27

the Appellant did not discharge the burden of proof in proving that the Letters of Administration was irregularly and fraudulently obtained are misplaced. For the onus of a party seeking to revoke Letters of Administration granted to another is irrelevant in the circumstances of this case where there is an express and ?viva voce? admission of the Respondents as defendants.

Counsel submitted that having conceded to the revocation of the Letters of Administration, the Respondents had admitted that it is indeed necessary to revoke and render invalid the Letters of Administration. He relied in this wise on the case of: Magbagbeola v. Akintola (2018) 11 NWLR (Pt. 1629) p. 177 at p. 196, para E. He argued that the inherent jurisdiction of a superior court of record does not give the Court the power to make an order on a relief that has been abandoned. In the instant matter, the Respondent voluntarily admitted that the Letters of Administration be revoked, hence, the trial Court could not under its inherent powers revive and act contrary to the relief sought by the Appellant. For to do this would amount to arbitrariness. On this position, he relied

28

on the case of: C. C. B. (Nig.) Plc. v. Masterpiece Chemicals Ltd. (2002) 12 NWLR (Pt. 682) p. 574 at p. 584.

Furthermore, counsel argued that, admittedly, in a declaratory relief, a Claimant must succeed on his own strength and not on the weakness of the defence if any and he would not be entitled to a declaration even upon an admission by the defence. However, in specific cases, where there are averments in the Statement of Defence expressly admitting the claim of the Claimant and evidence was adduced thereon which supports the Claimant?s case, such an express admission would ground and certainly establish a declaratory relief. He relied on the recent case of: Alagbado v. Farouk (2019) 1 NWLR (Pt. 1653) p. 292 at p. 309, paras. D-F. In paragraph 12 of the Further Amended Statement of Defence of the Respondents, the Respondents averred that, the 1st and 2nd Defendants concede the revocation of the Letters of Administration granted them in respect of the estate of the deceased and urge this Court to order the immediate execution of the judgment delivered by Hon. Justice Akintan Osadebey in Suit No: AK/137/2005. Reference was also made to the

29

evidence-in-chief of DW2, that is, Mr. Oladipupo Omotosho Kola contained in paragraph 8 of his written statement on oath. At trial, DW2 consented to the revocation of the Letters of Administration issued to the 2nd Respondent. Likewise under cross examination, DW2 also affirmed the averment in the Respondents? pleadings that the Letters of Administration should be revoked.

RESPONDENTS? COUNSEL?S SUBMISSIONS
Learned counsel submitted that on a close examination of the facts of this case and the evidence adduced in support, it is clear that the decision of the trial Court is consistent with substantial justice, notwithstanding the Appellant?s reliance on deflective technicalities and the Respondents? admission.

?The notion of substantial justice in the instant case on appeal essentially lies in the equitable distribution of the deceased?s properties among his nine children which the Appellant has been frustrating for selfish gains, using the instrumentality of unnecessary litigation. Therefore, the order of the trial Court that the Letters of Administration was valid and that the Respondents should supervise

30

the distribution of the deceased?s properties was not made outside the inherent jurisdiction of the trial Court, notwithstanding the Respondents? admission or concession that the Letters be revoked. What is more, the trial Court?s order in this regard did not in any way override the finality of the earlier judgment in Suit No. AK/137/2005 to the effect that the deceased?s properties be redistributed.

It was contended that since the Appellant sought a declaratory relief before the trial Court that the Letter of Administration (Exhibit C3) be declared null and void, the law required that he must succeed on the strength of his case and not on the admission of the Respondents. On this legal position, he relied on the case of: NYESOM V. PETER SIDE & ORS (2016) 5 SCM, p. 97 at p. 131, paras. C-E.

Furthermore, Counsel argued that, the trial Court?s validation of the Respondents? Letters of Administration, despite their concession that the Letters be revoked, is also within the inherent powers which enure to a superior Court of record, enabling it to take such actions as will protect and enhance the dignity of

31

courts and promote fair dispensation of justice. He relied in this wise on the case of: AGIP v. AGIP (2010) 2 SCN p. 1 at p. 51, paras. E-G.

RESOLUTION
The contention of the Appellant under this issue distilled from the Appellant?s Ground One of his Notice of Appeal is quite constricted. Simply put, it is that the Respondents having conceded that the Letters of Administration granted to the 2nd Respondent on the 4th of March, 2010 in respect of Chief Joseph Jose Oyewole Isijola the deceased father of the Appellant, is liable to be struck out, the trial Court ought to have unequivocally entered full judgment in favour of the Appellant per his claims against the Respondents. This head of the appeal is therefore centred on the specific claim of the Appellant against the Respondents for the order of the trial Court: SETTING ASIDE the said Letters of Administration dated 4/3/2010 granted to the 2nd Defendant in respect of the estate of the deceased Chief Joseph Jose Oyewole Isijola. ? See claim number 4 of the Further Amended Statement of Claim of the Appellant at pages 123 to 136 particularly at page 127 of the record of appeal. Indeed,

32

the claim is a continuation of claim numbers 2 and 3 on the same page of the record of appeal.

In a nutshell, the case of the Appellant is that, prior to the grant of the Letters of Administration to the 2nd Respondent in respect of the intestate properties of the father of the Appellant, there was a judgment of the High Court of Ondo State per Akintan-Osadebay, J., delivered on the 6th of August, 2009 in respect of the same estate. That there being a valid and subsisting order of the Court regarding the mode of distribution of the said estate, the subsequent grant of the Letters of Administration in respect of the same estate to the 2nd Respondent was null and void. Hence, the action of the Appellant against the Respondents, the subject of this appeal, is for the setting aside of the Letters of Administration. Incidentally, the learned trial Judge held, that the said earlier judgment of the High Court of Ondo State delivered on the 6th of August, 2009 per Akintan-Osadebay, J., is, valid, pending and existing until set aside by a Superior Court of Record ? see pages 242 to 244, particularly paragraph 2 of page 244, of the record of appeal.

33

As I stated at the introduction of this issue, regarding the relief sought by the Appellant for the setting aside of what he perceived as null and void Letters of Administration, the Respondents specifically in paragraph (12) of their Further Amended Statement of Defence contained in pages 137 to 139 particularly at page 139 averred as follows:
(12) The 1st and 2nd defendants concede the revocation of the Letters of Administration granted them in respect of this estate and urge this Honourable Court to Order the immediate execution of the judgment delivered by Hon. Justice O. Akintan-Osadebay in Suit No. AK/137/2005.

In civil cases of which the instant case is a specie, the burden of first proving the existence or non-existence of a fact lies on the party against whom the judgment of the Court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings ?
See Section 137(1) of the Evidence Act. If such party adduces evidence which ought reasonably to satisfy the Judge that the fact sought to be proved is established, the burden lies on the party against

34

whom judgment would be given if no more evidence were adduced and successively, until all the issues in the pleadings have been dealt with. Hence, the burden of first proving a fact is usually on the plaintiff who brought the action, though not invariably so. There are times when the burden is on the defendant, depending on the state of the pleadings. Therefore, it is valid law that the state of the pleadings materially determines the party who has the burden of proof. In essence, unlike the position in criminal cases where the burden of proof statically resides on the prosecution to establish the case brought against the defendant, the burden of proof in civil cases is not static on the plaintiff but it shifts from time to time depending on the pleadings of the parties. The law is equally settled that, in a criminal case or even in a civil case involving an imputation of crime, the standard of proof is proof beyond reasonable doubt, but in a civil case, the standard of proof is on the preponderance of evidence. In either case, the prosecution or plaintiff or claimant needs not call every available piece of evidence or witness to prove its/his case. It is enough

35

if sufficient credible evidence is adduced to discharge the burden of proof. Preponderance of evidence simply means one side’s position outweighing the other side when put on the imaginary scale of justice which must be evenly held by the Judge. On these legal principles, see the cases of: (1) Dibiamaka v. Osakwe (1989) 3NWLR (Pt. 107) p.101 at p.113; (2) Onwuka v. Omogui (1992) 3SCNJ p.98; (3) Akinkugbe v. E.H. (Nig.) Ltd. (2008) 12 NWLR (Pt. 1098) p.375; (4) Aliucha v. Elechi (2012) LPELR- 7823(SC) and (5) Ayorinde v. Sogunro (2012) LPELR – 7808(SC).

However, generally, the requirement of the law regarding the onus placed on a party claiming a declaratory relief as claimed by the Appellant herein, is quite stringent, for the plaintiff must satisfy the Court by cogent and credible evidence called by him to prove that as a claimant, he is entitled to the declaratory relief sought. It is the law that a Court does not grant a declaration on admission of parties because the Court must be satisfied that the plaintiff, on the strength of his own evidence, not the weakness of the evidence of the defendant, is entitled to the relief claimed. See the cases of:

36

(1) Woluchem v. Gudi (1981) 5SC p.291; (2) Fabunmi v. Agbe (1985) 1NWLR (Pt.2) p.299 at p.318 and (3) Ayanru v. Mandilas Ltd. (2007) 10NWLR (Pt.1043) p.462. In the case of: Dumez Nig. Ltd. V. Nwakhoba (2008) 18 NWLR (Pt.1119) p.361, the Supreme Court on the issue of who bears the burden and standard of proof in declaratory reliefs restated the age-long legal principle as follows:
The law on the requirements of the plaintiff to plead and prove his claims for declaratory reliefs on the evidence called by him without relying on the evidence called by the defendant is indeed well settled. The burden of proof on the plaintiff in establishing Declaratory Reliefs to the satisfaction of the Court is quite heavy in the sense that such Declaratory Reliefs are not granted even on admission by the defendant where the plaintiff fails to establish his entitlement to the declaration by his own evidence. In other words, declarations of right as sought by the plaintiffs/respondents in their first relief against the defendant/appellant in the present case, cannot be made on admission or in default of pleading by the defendant not to talk of reliance on the evidence of the

37

defendant?s witnesses. See Wallersteiner v. Moir (1974) 3 All ER 217 at 251, where Bukley, L.J., said:
It has always been my experience, and I believe it to be a practice of long standing, that the Court does not make declarations of right either on admission or in default of pleading but only if the Court was satisfied by evidence.
See also Metzger v. Department of Health and Social Security (1977) 3 All ER 444 at 451. This statement of the law was adopted by this Court in Vincent I. Bello v. Magnus Eweka (1981) 1SC 101; (1981) 1SC, (Reprint) 63, and also applied in Motunwase v. Sorungbe (1988) 12S.C (Pt.1) 130; (1988) 5NWLR (Pt. 92) p. 90 at p. 102.
As clearly pointed out by the Appellant?s counsel, there are exceptions to the above stated general legal principle that, in a declaratory relief, a claimant must succeed on the strength of his case and not on the weakness of the case or admission of the defendant. One of such exceptions is, where evidence is extracted either in cross-examination or evidence-in-Chief from the defence on facts which were pleaded which support the case of a claimant,

38

especially where issues have been joined on such facts. This exception is equally age-long, in that, a plaintiff or defendant can make use of the evidence of his adversary or from the other side even in anaction for a declaratory claim. In the case of: Akinola & Anor. V. Oluwo & Ors. (1962) LPELR-25101, the Apex Court per Unsworth, JSC (of blessed memory) pointedly held as follows:
The trial Judge held that the plaintiff had failed to establish his case, and said that the plaintiff must succeed on the strength of his own case and not on the weakness of the defendants? case. This is true, subject, of course to the important point that the defendants? case may itself support the plaintiff?s case and contain evidence which the plaintiff is entitled to rely.
Also in the case of: Ihenacho & Ors. v. Chigere & Ors. (2004) LPELR-1459, the Supreme Court per Onu, JSC (Rtd.) reiterated this trite legal principle as follows:
… evidence led by a partly can be fully relied on by the other party either to establish his case or to damage or demolish the case of the person leading the evidence vide

39

Edokpolor & Co. Ltd. v. Bendel Insurance Co. (1997) 2 NWLR (Pt. 486) 133 at 140-141; Ajagungbade III v. Laniyi ((1999) 13 NWLR (Pt. 633) 92 at page 114 and Ezeogu v. Onwuchekwa (1997) 4NWLR (Pt. 502) 689 at pages 707-708.
In the case of: Akomolafe & Anor. V. Guardian Press Ltd. (Printers) & Ors. (2010) 1 SC (Part 1) p. 58, the Apex Court per Onnoghen. J.S.C. [as he then was, later C.J.N. (Rtd.)] made the following very pointed elucidation on the effect of evidence elicited during cross-examination thus:
On the issue as to whether both parties called evidence in support of their pleadings as held by the lower Court, it is settled law that evidence elicited from a party or his witness(es) under cross-examination which goes to support the case of the party cross examining, constitute evidence in support of the case or defence of that party. If at the end of the day, the party cross examining decides not to call any witness, he can rely on the evidence elicited from cross examination in establishing his case or defence. In such a case, you cannot say that the party called no witness in support of his case or defence,

40

… as the evidence elicited from his opponent under cross examination which is in support of his case or defence constitutes his evidence in the case. The exception is that the evidence so elicited under cross examination must be on facts pleaded by the party concerned for it to be relevant to the determination of the question/issue in controversy between the parties.
See also the cases of: (1) Orianwo & Ors. v. Okene & Ors. (2002) LPELR-2759(SC); (2) Ipuole & Ors v. Odey & Ors. (2013) LPELR-22712 (CA) and (3) Akomolafe & Anor. v. Guardian Press Ltd. (Printers) & Ors. (2010) ISC (Pt. 1) p. 58. The case of: Alagbado v. Farouk (Supra) cited and relied on by the Appellant is quite instructive on this subject. Hence, such evidence of an adversary should be made use of be the Court. In the instant matter, not only is the pleading of the Respondents in paragraph 12 of their Further Amended Statement of Defence in support of the case of the Appellant, the evidence elicited from the Respondents through one Oladipo Omotoso Kola who was DW2 at trial equally preponderates on the

41

Appellant?s side of the imaginary scale of justice. Not only did DW2 adopt his written statement on oath contained in pages 140 to 142, particularly paragraph 8 at page 141 of the record of appeal where he conceded to the revocation of the Letters of Administration, under his cross-examination, he maintained the same posture ? see line 8 of page 233 of the record of appeal.
?Now, the main contention of the Appellant is that, since there had been an earlier judgment of the High Court of Ondo State in Suit No. AK/137/2005, wherein a specific mode of distribution of the intestate properties of the Appellant?s father was ordered, the Letters of Administration subsequently granted to the 2nd Respondent in respect of the same estate is null and void. What is more, the Letters of Administration was obtained behind-the-scenes as the Appellant who is the first child of his late father?s was not carried along in obtaining same. For those reasons, the Appellant sought the order of the trial Court to revoke the Letters of Administration and in its stead enforcement of the earlier judgment in Suit No. AK/137/2005. It is clear as day as

42

enumerated above that, the pleadings and evidence presented by the Respondents at the trial Court substantiate the claim of the Appellant. On the authority of: Akomolafe & Anor. v. Guardian Press Ltd. (Printers) & Ors. (Supra), the Appellant did not have to adduce a jot of evidence in further support of his claim. For the evidence elicited under the cross-examination of DW2, on the facts pleaded by the Appellant, the fulcrum of his claim, clearly supports the said claim and constitutes the Appellant?s own evidence in the Appellant case. What is more, the said evidence elicited from the Respondents having been specifically pleaded by the Appellant is very relevant to the determination of the issue in controversy between both parties. Therefore, the Appellant deserves to be credited with the said evidence of the Respondents and concomitantly, the Appellant is entitled to have the Letters of Administration set aside as claimed by him. What is more, the learned trial Judge rightly found that the judgment in Suit No. AK/137/2005 is valid and subsisting.

Before I conclude on this issue, I consider it apposite to state that the line of reasoning

43

leading to the decision of the trial Court, in obliquely granting the reliefs sought in the Respondents? counter-claim after same had previously been struck out by it, was influenced purely by sentiments and empathy. With respect, it is my firm view and I hold that the learned trial Judge erred in law in this regard. For the law is trite that, sentiments and empathy have no place in judicial deliberations. In the case of: Saidu & Anor. v. Nono & Ors. (2015) LPELR-40372, this Court had the following to say on this subject:
A Court of law must be able to hold its head high up above the fray and dust of battle, and stick to applying the law to the facts without indulging in a display of sentiment and/or emotion. Whatever the learned Judges perceive, in their intuition, may have gone on behind the scenes, once it is not properly brought to their notice by way of concrete and credible evidence, it (sic) has no business acknowledging and even making pronouncements thereon.
See also the cases of: (1) Ejezie & Anor. v. Anuwu & Ors. (2008) 12 NWLR (Pt. 1101) p. 446; (2) C.G.G.(Nig.) Ltd. v. Ogu (2005) 8 NWLR (Pt. 927) p. 366 and (3)

44

Ezeugo v. Ohanyere (1978) 6-7 SC p. 171.

In consequence of my above clarifications, it is obvious that issue two is also bound to be and hereby resolved in favour of the Appellant and against the Respondents.

Therefore, with the resolution of the two issues raised by the Appellant in his favour, the appeal is prominently imbued with merit, declared a success and allowed accordingly.

Therefore, the judgment of the trial Court per Osoba, C.J. Ag. (Rtd.) delivered on the 10th of May, 2017 in Suit No. AK/118/2010 is hereby set aside, save the portion which declared valid and subsisting the earlier decision of the High Court of Ondo State per O. Akintan-Osadebey, J., delivered on the 6th of August, 2009 in Suit No. AK/137/2005.
I make no order for costs.

MOHAMMED AMBI-USI DANJUMA, J.C.A.: I have had the benefit of reading in draft form this well horned judgment articulated by my learned brother Oyebisi Folayemi Omoleye, JCA; and I concur that the appeal be allowed.

I endorse the consequential order setting aside the judgment of the trial Court, but affirming the portion that validated the trial judge’s

45

finding that the judgment in Suit No. AK/137/2005 was valid and subsisting.

The grant of the counter claim that had been struck out upon its withdrawal but without an appeal therefrom, was wrong; so also the existence of evidence adduced vide (through) cross-examination leading to the admission against interest by the Respondents, was such evidence that the Appellant could rightly rely on; and it was admissible in favour of the Appellant herein.
Appeal is allowed in terms of the consequential orders made in the lead judgment herein.

RIDWAN MAIWADA ABDULLAHI, J.C.A.: I have read in draft form and agree with the lead judgment delivered by Oyebisi F. Omoyele, JCA (PJ) that this appeal be allowed, in part only.

The position of the lead judgment affirming the decision in Suit No: AK/137/2005 of 6th August, 2009 is also agreeable to me.

?I, in consequence, allow this Appeal in the same manner as in the lead and adopt the view/order that no costs be awarded in this appeal.

46

Appearances:

Chief F. Omotosho with him, Mr. A. S. PelemoFor Appellant(s)

Mr. D. C. Olafimihan (Assistant Chief Legal Officer, Ministry of Justice, Ondo State)For Respondent(s)

 

Appearances

Chief F. Omotosho with him, Mr. A. S. PelemoFor Appellant

 

AND

Mr. D. C. Olafimihan (Assistant Chief Legal Officer, Ministry of Justice, Ondo State)For Respondent