Mrs. Adamo Ajibaiye V. Risika T Ajibaiye & Ors (2007)

LawGlobal-Hub Lead Judgment Report

TIJJANI ABDULLAHI, J. C. A

By originating summons filed by the Plaintiffs who are Respondents in this appeal the following two questions were sought to be determined as follows:

“1. Whether the documents dated 30th September, 2002 purporting to be the last WILL of Alhaji Disu Ajibaiye is valid having regard to the Wills Law of Kwara State.

2. Whether the Late Alhaji Disu Ajibaiye being a Moslem and Governed by Moslem Personal Law could make the document dated 30th September, 2002 purporting it to be a Will under English Law having regards to the Wills Law of Kwara State.”

Based on the questions stated (supra) the Plaintiffs now Respondents claimed the following reliefs stated hereunder:

“1. A DECLARATION that the document dated 30th September, 2002 purporting to be the Last Will of Alhaji Disu Ajibaiye is invalid null and void and of no effect whatsoever.

2. A DECLARATION that the document dated 30th September, 2002 purporting to be the Last Will of Alhaji Disu Ajibaiye is invalid being contrary to Islamic Laws applicable to the deceased who was a Moslem.
3. A DECLARATION that the Estate of the Late Alhaji Disu Ajibaiye is liable to be distributed to his children, dependants and other likely beneficiaries under Islamic Laws and injunction.
4. AN ORDER setting aside and nullifying the purported WILL dated 30th September, 2002 as being null and void and of no effect whatsoever.
5. AN ORDER revoking the probate that may have been granted to the defendants consequent upon the purported WILL.
6. AN ORDER setting aside and nullifying all actions steps and things purported to have been taken or done by the defendants or anyone of them consequent upon the purported WILL in respect of the Estate of late Alhaji Disu Ajibaiye.
7. AN ORDER compelling the defendants jointly and/or severally to render accounts of monies taken from the Bank Account of the Late Alhaji Disu Ajibaiye either at Union Bank PLC Muritala Mohammed Road Branch, Ilorin or at Union Bank PLC” Ita – Balogun Branch, Lagos.
8. AN ORDER prohibiting the defendants, their agents, privies or persons acting on their instruction from further dealing with the estate of the Late Alhaji Disu Ajibaiye in any way whatsoever whether as executors or in any other capacity whatsoever. ”

The Original summons was supported by a 21 paragraphed affidavit deposed to by one Anota Ajibaiye, the 3rd Respondent in this appeal. The affidavit was deposed and sworn to on the 14th day of June, 2004. Attached to this affidavit was Exhibit A, a copy of the purported Will; a further affidavit in support of the summons deposed to by Olayemi Taiwo, a litigation clerk in the chambers of the plaintiffs’ counsel deposed and sworn to on the 26th day of November, 2004. Attached to this affidavit was the whole of Exhibit A, including page 6 which was inadvertently not included; a reply to the 3rd defendant’s counter affidavit, deposed and sworn to by Anota Ajibaiye on the 2nd day of December, 2004 the 3rd plaintiff at the lower court. Other affidavits were replies to counter affidavits of 1st and 2nd defendants respectively.

On the other hand, the Respondent filed a counter-affidavit deposed and sworn to by P. O. Onyekwelu (Mrs.) a counsel in the chambers of the Respondents’ counsel on the 5th day of October, 2004 and another further counter affidavit deposed and sworn to by the 1st Respondent on 29th Day of November, 2004. Needless to say both parties relied on the averments of the supporting affidavits as well the counter-affidavits. I will make reference to the relevant averments in the course of writing this judgment as and when it is appropriate.

The facts leading to this appeal are that: – The first to fifth respondents were the plaintiffs at the trial court. They are the children of Late Alhaji Disu Ajibaiye who died on 29th of January, 2004 at the age of 90 years. The deceased had three wives and 21 children. He also lived and died as a Muslim. The deceased had properties in Ilorin, Lagos and Ajase-Ipo. He was from Ajase-Ipo in Kwara State. At the time of his death, he was resident in Ilorin and he died in Ilorin but was buried at Ajase-Ipo.

The 3rd defendant (now the sole appellant) was the last and youngest wife of the deceased. The deceased purportedly made a WILL, which only the 3rd defendant (appellant) had information about at the time of his death. The deceased being a Moslem and who never renounced his faith was a person who was subject to Islamic law immediately before his death.

He never renounced his faith even up till the time of his death.

The deceased was purported to have made a WILL dated 30th September, 2002 under the Wills Act of 1837 of England. The said WILL was contrary to the Wills Law of Kwara State and the plaintiffs challenged it at the High Court by Originating Summons in which two questions of law were posed for determination at the trial as stated (supra).

The plaintiffs had to challenge the validity of the purported WILL when they found that it was not made according to Islamic injunction under which their father was obliged to make a WILL.

The plaintiffs contended at the trial court inter-alia, which since there is a local legislation on the issue of making of a WILL for persons subject to the laws of Kwara State that is, WILLS LAW Cap 168 Laws of Kwara State, the deceased could not and should not have made a WILL under the Wills Act of 1837 of England – a statute of General Application which had been abolished in Kwara State. And after listening to the addresses of counsel for the parties the learned trial judge held thus:

“The Will dated 30th September, 2002 purporting to be the Will of a Muslim Alhaji Disu Ajibaiye governed of Muslim personal law disposing by will all his property in accordance with the Wills Act 1837 of England having regards to S. 4(1) (sic) the Wills Law of Kwara State is invalid null and void. Consequently, all the plaintiffs 8 reliefs are hereby granted. ”

Dissatisfied with the judgment of the lower court the sole appellant through her counsel filed an amended Notice of Appeal with the leave of this court consisting of 11 Grounds.

The grounds shorn of their particulars are:

“GROUND ONE:

The decision of the learned trial Judge is unreasonable and unwarranted having regard to the weight of the affidavit evidence before him

GROUND TWO

The learned trial Judge erred in law when he held that the suit of the Applicant/Respondent was proper and competent by initiating same by an originating summons.

GROUND THREE:

The learned trial Judge misdirected himself when he held that the deceased testator though may have sold and taken alcohol in his life time and had children out of wedlock was still subject to ‘Islamic law’ before his death.

GROUND FOUR:

The learned trial Judge erred in law when he held that “it will appear too judgmental and presumptuous” to hold that the deceased was not a Muslim subject to Islamic Law not withstanding his life style before his death.

GROUND FIVE:

The learned trial Judge misdirected himself in law when he agreed with the Applicant’s counsel that the appellant was given more than 2/3 of the deceased testator’s estate.

GROUND SIX:

The learned trial Judge erred in law for his failure, refusal and/or neglect to consider and/or refer to the affidavit of the first Defendant in the determination of the suit before it.

GROUND SEVEN:

The lower court erred in law and shunned its sacred duty when it failed, refused and/or neglected woefully to act as an impartial arbiter by considering extraneous facts and/or matters which are not before it in the determination of the suit before it.

GROUND EIGHT

The lower court erred in law when it failed woefully to make a definitive pronouncement on the admissibility or otherwise of Exhibits A and A1.

GROUND NINE:

The lower court erred in law when it failed to give effect to the proceedings of probate registry as contained in Exhibit “K” wherein some of the relatives of the testator including some of the Plaintiffs/Respondents consented to the authenticity of Exhibit A1.

GROUND TEN:

The learned trial Judge erred in law and misdirected himself when he invalidated, nullified and voided the document dated 30th September, 2002 when he never satisfied himself that the said document dated 30th September, 2002 is the Will of Alhaji Disu Ajibaiye.

GROUND ELEVEN:

The learned trial Judge erred in law and misdirected himself when he declared the Will dated 30th September, 2002 invalid, null and void after relying on the provisions of the said Will.” Learned Counsel for the Appellant, in a brief settled by Temidayo Eseyin distilled from the Grounds of Appeal (supra) six issues for determination as follows:-

“(1) Whether the learned trial Judge was right when he held that the suit was competent same having been initiated by Originating Summons.

(2) Whether the deceased Testator was caught by the exception contemplated by section 4(1) (b) of the Wills Law Cap 168 Laws of Kwara State, 1994.

(3) Whether the Learned trial Judge was right in the determination of the suit without a proper consideration of the affidavit placed before him and with the use of extraneous facts and/or matters.

(4) Whether the failure of the Learned trial Judge to consider and to make specific findings and pronouncement on the Counter and Further Counter Affidavit of the 1st Defendant and the admissibility of Exhibits A and A1 is fatal and a miscarriage of justice.

(5) Whether the failure of the Learned trial Judge to give effect to ‘Exhibit k’ attached to the Counter-Affidavit of the 1st Defendant being a record of proceedings of the probate Registry of Kwara State has occasioned a miscarriage of justice.

(6) Whether the Learned trial Judge was wrong when he nullified and invalidated the Will of Alhaji Disu Ajibaiye dated 30th September, 2002 and then went ahead to rely on the provisions of the same document. ”

On their part, in an amended brief settled by Mr. Baiyeshea, the Learned Counsel raised a preliminary objection which will be treated infra. He also formulated five issues for determination as follows:

“(I) Whether the learned trial Judge was right in holding that the plaintiff’s suit was properly initiated by originating Summons. Ground 2 of the grounds of appeal.

(II) Whether the learned trial Judge was right in nullifying and setting aside the purported WILL dated 30th September, 2002 for having been made in accordance with the S. 4(1) (b) of the Wills Law of Kwara State. Grounds 1, 3, 4 and 5 of the grounds of appeal.

(III) Whether the learned trial judge considered material facts (and not extraneous facts) in determining this case and arriving at the conclusions in the judgment to the effect that the purported WILL is a nullity. Grounds 6 & 7 of the Ground of Appeal.

(IV) Whether the learned trial Judge made any Pronouncement on the admissibility of Exhibit A and A1 and whether the learned trial Judge was right on the contents of exhibit A – A1 in nullifying grounds of appeal.

(V) Whether alleged proceedings in exhibits “K” could Validate the purported WILL and whether the exclusion of Exhibit K, has occasioned any miscarriage of Justice to the appellants. ”

PRELIMINARY OBJECTION:

Learned Counsel for the respondents’ preliminary objection is based on the following grounds:

(a) The 1st and 2nd defendants in the suit at the trial court have been wrongly converted and made 6th 7th respondents in this appeal by the appellant.

The 1st and 2nd defendants did not appeal against the trial court’s judgment. They cannot be made Respondents in this appeal by the unilateral action of the appellant.

(b) Grounds 3, 4 and 5 of the grounds of appeal in the Notice of Appeal are incompetent and liable to be struck out in that the said grounds do not flow or arise from the decision of the trial court in this case. The so-called grounds of appeal are not based on the decision of the trial court.

(c) Ground seven of the grounds of appeal (contained in the schedule of the amended notice of appeal is incompetent and liable to be struck out in that same is abusive, argumentative, and a commentary. ”

Learned Counsel for the Respondents contended that the rationale for making the 1st and 2nd defendants as 6th and 7th Respondents in this appeal has not been explained. The appellant, he further contended has no right to unilaterally add a party or parties to the appeal without the leave of this court. The defendants cannot be made respondents when they have not applied to be joined as such.

And the 15th to 5th Respondents did not also apply that the 6th and 7th Respondents should be so joined. Learned Counsel submitted therefore that the joinder of 6th and 7th Respondents is wrong and he urged us to strike their names out of this appeal. He relied on the case of Attorney General Anambra State -vs. – Okeke (2002) FWLR Pt. 112, P. 175 at 197.

On the 2nd point of the preliminary objection that, grounds 3, 4 and 5 of the grounds of appeal did not flow or arise from the decision of the trial court, Learned Counsel urged us to scrutinize the said grounds properly with the judgment of the trial court at pages 110 to 114 in order to ascertain the truth of his submission on this point.

As for the objection in respect of ground seven contained in the schedule of amendment to the Notice of Appeal, Learned Counsel submitted that it is not a proper valid ground of appeal.

The way it is framed or couched is narrative, abusive and argumentative and as if a commentary is being run, he further submitted. He relied on the case of Ezebilo Abisi & Ors -vs. – Ekwealor (1993) 7 SCNJ, P. 193 at P.209.

Learned Counsel finally urged us to uphold their preliminary objection, strike out 6th 7th respondents from this appeal and strike out grounds 3, 4, 5 and 7 of the grounds of appeal as well as issues 2 and 3 formulated on the said incompetent grounds.

On the 1st ground of objection, a careful and meticulous scrutiny of the record of the lower court will reveal the fact that 1st and 2nd defendants have not appealed against the judgment of the trial court. That aside there is no evidence before us to show that the appellant ever put 6th and 7th respondents (1st and 2nd defendants) on notice about this appeal neither were they served with the processes of this court.

I am of the firm views that since 6th and 7th Respondents have not appealed against the judgment of the trial court; they have ceased to be parties in the case at least at this stage. I am of the view that they cannot be made Respondents in the absence of an application to be joined. In the light of the foregoing, I am in complete agreement with the Learned Counsel that, the first and second defendants have been wrongly converted and made 6th and 7’h respondents in this appeal by the appellant. This being the case, their names are hereby struck out of this appeal.

I now proceed to consider the 2nd preliminary objection raised by the Learned Counsel to the effect that grounds 3, 4 and 5 of the grounds of appeal in the Notice of Appeal do not flow or arise from the decision of the trial court. For clarity and better appreciation of the objection, the said grounds are produced hereunder shorn of their particulars:

“GROUND THREE:

The learned trial Judge misdirected himself when he held that the deceased testator though may have sold and taken alcohol in his life time and had children out of wedlock was still subject to ‘Islamic law’ before his death.

GROUND FOUR:

The learned trial Judge erred in law when he held that “it will appear (sic) judgmental and presumptuous” to hold that the deceased was not a Muslim subject to Islamic Law not withstanding his life style before his death.

GROUND FIVE:

The learned trial Judge misdirected himself in law when he agreed with the Applicant’s counsel that the appellant was given more than 2/3 of the deceased testator’s estate.

Now, the question to be asked at this juncture is whether the learned trial Judge did make the findings captured in the said grounds of appeal reproduced above. However, before I venture to answer this question, let me state the law on this issue. In the case of A. G. Anambra State -vs. – Okeke (2002) FWLR Pt. 112, P. 175 at 209, the apex court per Iguh, JSC held that:

“It is trite law that the basis for any appeal must relate to the decision of the court from which the appeal lies, any grounds of appeal and issues raised on matters outside those relating to the relevant decision are incompetent.”

Again, in the case of M. U. Ikem and 3 others -vs. – Victor Ezianya (2002) 4 NWLR (Pt. 757) P. 245 at P. 261, Paras G – H, this court per Olagunju, J. C. A. held thus:

“A ground of appeal is incompetent when the factual basis of same is false or non-existent and it does not matter whether such ground of appeal is a ground or law, fact or mixed law and fact. In the instant case, ground four of the appellant’s grounds of appeal is based on the false premise that the trial court held that the appellants had made out a good case, because the trial court did not make such finding. Consequently, the ground of appeal is incompetent. (Alakija -vs.- Abdulai, (1998) 6 NWLR (Pt. 552) I referred to (P. 261, Paras F-H).

Ground 3, of the grounds of appeal is grotesque by asserting that the trial judge misdirected himself when he held that the deceased testator though may have sold and taken alcohol in his life time and had children out of wedlock was still subject to Islamic Law before his death. This is a barefaced misrepresentation to say the least by the appellant as the learned trial Judge never said so in his judgment of 27/05/2005 under consideration in this appeal. The facts captured in ground three of the Notice of Appeal did not flow from the judgment of the noble Lord.

He made a general statement on a Muslim who commits any transgression or act of impropriety. Hear him;

“One very important issue to resolve is whether or not a Muslim who has children out of wedlock and sells and/or consumes alcohol ceases to be a Muslim. A person who has not expressly renounced his Islamic faith notwithstanding any aberration of transgression of Islam injunction remains a Muslim. If he commits any transgression or act of impropriety he can only be sanctioned in accordance with the law of his faith and any other way. ”

May I say, my Lords at this juncture that I am in complete agreement with the submission of the Learned Counsel to the Respondents that the purport of trial court’s judgment is that even if the deceased (plaintiffs’ father) committed any wrong when he was alive (which the court did not find him to have done) the person can only be sanctioned with the law of his faith. It is not for the appellant or anyone to judge.

I pause here to say, in the light of the above, ground three of the grounds of appeal must be and it is hereby struck out accordingly.

In ground four of the grounds of appeal, the trial judge is alleged to have said thus:

“It will appear too judgmental and presumptuous” to hold that the deceased was not a Muslim subject to Islamic Law notwithstanding his life style before his death. ”

My Lords, this is yet another barefaced misrepresentation as the judge never said so in the said judgment. His Lordship, on page 109 of the said Judgment stated as follows:

“It will, therefore, appear too judgmental and presumptuous to conclude that for reason of any act(s) of impropriety, aberration or transgression he is no longer a Muslim.

Every religion has provisions for correcting erring or aberrant adherents of the faith just as the Almighty God has inexhaustible capacity and compassion for forgiveness of sins. ”

This ground of appeal like the previous ground did not arise from the decision of the learned Judge and same is accordingly struck out.

In ground 5 of the grounds of appeal, the learned trial Judge is alleged to have misdirected himself when he agreed with the Applicant’s counsel that the Appellant was given more than 2/3 of the deceased testator’s estate. Permit me my Lords, to say at the risk of repeating myself, that, this is yet another barefaced misrepresentation of the judgment of the learned trial Judge. I have read severally and meticulously the judgment of the Learned trial Judge and I hasten to say that I have not found any where in the judgment, where the learned Lord agreed with the Applicants’ counsel that the Appellant was given more than 2/3 of the deceased testator’s estate. Far from it. The said Judgment is predicated on the validity or otherwise of the Will made by the father of the Respondents wherein the learned trial Judge held that:

“The Will dated 3rd September, 2002 purporting to be the last will of a Muslim Alhaji Disu Ajibaiye governed by Muslim Personal Law disposing by will all his property In accordance with the Wills Act 1837 of England having regards to S. 4(1) the Wills Law of Kwara State is invalid null and void. Consequently, all the plaintiffs 8 reliefs are hereby granted”

This ground, like the previous grounds (3×4) for the same reasons enunciated while striking those grounds is accordingly struck out. May I at this juncture say, before I am done with the three grounds, that I am in complete agreement with the Learned Respondents’ Counsel that the grounds are not based on the decision of the trial judge but concocted and framed from the figment of imagination and conjecture of the appellant who surprisingly was and is still represented by a counsel who is supposed to be her legal adviser.

I say no more on this save to say that the issues formulated and argued in the Appellant’s brief based on the said grounds of appeal are equally struck out.

Learned Counsel for the Respondents also urged us to strike out ground 7 of the grounds of appeal for the reason that same is narrative, abusive and argumentative and as if a commentary is being run. The said ground, needless to say reads thus:

“The lower court erred in law and shunned its sacred duty when it failed, refused and/or neglected woefully to act as an impartial arbiter by considering extraneous facts and/or matters which are not before it in the determination of the suit before it.”

On attributes of good ground of appeal, this court per Mukhtar J. C. A (as she then was) held as follows:

“A good ground of appeal must be concise, elegantly drafted and straight to the point, that as soon as it is read, the error and misdirection complained against can be immediately understood and digested. One should not forget what the main complaint is by the time one finishes reading the particulars. It should also not be too argumentative. (Baruwa -vs. – Osoba (1997) NWLR (Pt. 482) 164 referred to) (Pp. 605 – 606, Paras H-B)

Again, in the case of Ezebilo & Ors -vs.- Ekwealor (1993) 7 SCNJ, 199 AT 209, the apex court per Ogundare J. S. C. (as he then was) of blessed memory held thus:

“Let me now examine the complaints against the grounds of appeal before the court below. After a careful scrutiny of the eight grounds, grounds 1- 7 were so inelegantly drafted that any of them could hardly be said to be a proper ground of appeal. While some of them (such as grounds 1, 3, 5 and 7) that were christened “misdirection” could hardly be so described………….”

His Lordship held further that:

“In my respectful view grounds 1, 3, 5 and 7 can hardly be described as grounds of misdirection. No doubt, Uwaifo JCA in his lead judgment was mindful of the defects contained in the grounds of appeal before him and rightly struck out grounds 1, 2, 3, 5, 6 and 7 as being incompetent. Those grounds being incompetent, no issues for determination could be formulated on them.”

A cursory look at the said ground (Ground 7) will leave one in no doubt that it does not pass the test of a good ground of appeal as enunciated by my noble lords in the cases stated supra. I am of the considered view that the said ground of appeal ought to be and it is hereby struck out.

My Lords, after allowing the preliminary objection of the Learned Respondents’ Counsel in toto, I am now left with the remaining surviving grounds of appeal, namely 1, 2, 6, 8, 9, 10 and 11 and the issues distilled there from for my consideration which I shall now embark.

Issue No 1 for the Appellant is not different from Issue No 1 as formulated by the Respondent. Issue No 2 based on grounds 3 and 4 is gone with the striking out of grounds 3 and 4 of the Notice of Appeal and consideration will not be given to it in this judgment. Issue No 3 formulated by the Appellant is not dissimilar with the issue No.3 as formulated by the Respondents.

Issue No. 4 of the Appellant though differently couched is the same with issue No.4 as formulated by the Respondents. Issue No.5 of the Appellant is the same with issue No.5 as formulated by the Respondents. Issue No. 6 stands out as there is no corresponding issue formulated by the Respondents’ Counsel.

This appeal can be disposed of by giving consideration to the issues formulated by either counsel. This being the case, I adopt the issues as formulated by counsel to the Appellant.

Issue No.1, is whether the Learned trial Judge was right when he held that the suit was competent same having been initiated by originating summons. On this issue, Learned Counsel for the Appellant, after restating the provisions of order 2 Rules 5 and 6 of the Kwara State High Court, Rules 2005 which is similar to order 1 Rule 2 (a) and (b) of 1989 of the said High Court Rules, submitted that irrespective of whether the determination of the rights of parties in a suit is premised on the interpretation or construction of a document, or a statute, originating summons should only be applicable in circumstances where there is no dispute on questions of fact or the likelihood of such dispute.

He relied on the cases of Oba Jimoh Oladunnni Oyewumi and Oba Samuel Adegboyega; Osunbade & 5 Ors (2001) FWLR (Pt. 82) held 2 or at page 1962 paragraph F- G and Oloye -vs.-

Alegbe (1983) 2 SCLR 35.

Learned Counsel argued that the Learned Trial Judge in determining the rights of the parties before him was called upon to interpret section 4(1) (a) and (b) of the Wills Law, Cap 168 Laws of Kwara State, 1994, Learned Counsel submitted that the issues whether a person is immediately before his death subject to Islamic Law calls for the examination of the life style of the person before his death and is a matter of fact, which certainly, cannot be resolved by originating summons, due to likely conflicts in affidavit evidence. Learned Counsel after highlighting the conflicts in the affidavit evidence of the parties further submitted that they (conflicts) are not resolvable by way’ of originating summons and that it should have taken the form of a writ. He relied on the case of National Bank of Nigeria & 1 Or -vs.- Lady Oyokunle Alakija & 1 Or (1978) 9 and 10 SC 59 or 1972 2 LRN P. 78. He urged us to resolve this issue in favour of the Appellant.

Learned Counsel for the Respondents on the other hand submitted that the trial judge was right in holding in his judgment that the plaintiffs’ suit was properly initiated by originating summons. Learned Counsel contended that the main issues in contention relate to the determination of questions relating to the construction of the purported Will dated 30th September, 2002 for declarations set out in the originating summons.

Learned Counsel further submitted that the process was very ideal and proper by virtue of order 38 Rules 1 and 2 of the High Court Civil Procedure Rules, 1989 which was then applicable to the case under consideration.

Learned Counsel submitted that essentially the case of the plaintiffs as articulated and structured in the originating summons is mainly to determine the validity of the purported Will dated 30th September, 2002 Vis-a-vis the Wills Law of Kwara State. The facts deposed to in the affidavits in support of the originating summons are geared towards determining the question(s) of law therein.

Learned Counsel contended that the trial Judge properly exercised his discretion to determine the questions of law raised in the originating summons. Learned Counsel further contended that by the provision of order 38 Rules 4 and 5 of the High Court Civil Procedure Rules of Kwara State,1989, the learned trial Judge was justified in accepting the case as having been properly initiated by originating summons. He submitted that by the rules of court, it is even the evidence of the plaintiffs as disclosed in the affidavit in support of the originating summons that the Judge needs to consider determining whether the suit was competent by originating summons. The learned trial Judge was right in placing reliance on the case of Famfa Oil Ltd -vs.- Attorney General of the Federation (2002) FWLR Pt. 184 Page 195 at P. 205 Paras D – F. He urged us to resolve this issue against the Appellants.

My Lords, may I say from the submissions of the Learned Counsel reviewed supra, the bone of contention is the competence of the suit which is the subject matter of the appeal under consideration; should it have come by writ of summons or by originating summons. In the case of Famfa Oil -vs- Attorney General of Federation (Supra). The apex court per BELGORE J.S.C. (as he then was) held that:-

“The very nature of an originating summons is to make things simpler. It is available to any person claiming interest under a deed, will or other written instrument whereby he will apply by originating summons for determination of any question or construction arising under the instrument for a declaration of his interest.”

To determine whether the case of the plaintiffs at the lower court was mainly to determine the validity of the purported Will dated 30th September, 2002 vis-‘E0-vis the Wills Law of Kwara State, recourse had to be made to the originating summons dated 14th day of June, 2004, filed by the plaintiffs on the same date. It reads:

“ORIGINATING SUMMONS

Let the Defendants who are in Ilorin, Kwara State, Nigeria within eight days after service cause an appearance to be entered for them to this Summons which is issued upon the application of Anota Ajibaiye and 4 others who are Plaintiffs for the determination of the following questions.”

The contents of the originating summons (supra) are self explanatory and one does not need any aid to read and interpret same. I must agree with Mr. Baiyeshea when he submitted in his brief of argument paragraph 2.02 thus:

“It is humbly submitted that essentially the case of the plaintiffs a s articulated and structured in the Originating Summons is mainly to determine the validity of the Purported Will dated 30th September, 2002 vis-‘E0-vis the Wills Law of Kwara State. The facts deposed to in the affidavit in support of the Originating Summons are geared towards determining the question (s) of law therein. The purported Will is Exhibit A – A1 attached to affidavit accompanying the Originating Summons and the same document is exhibit A1 attached to a further affidavit in support of the Originating Summons. And on the face of Exhibit A – A 1 the deceased declared himself to be a Moslem.”

Learned Counsel for the Appellant has made heavy weather of the faith of the deceased. I am of the considered view that there is no controversy about it. This is borne out clearly on the face of Exhibits A – A1 attached to the affidavit and further affidavit respectively in support of the originating summons. The relevant portions read thus:

“(6) INSTRUCTION AS TO MY BURIAL

My burial should be done in accordance with Muslim rites without drinking of alcohol either on the date of my death, burial or the 8 days Prayer.

(6) GENERAL INSTRUCTION AS TO THE GUIDINGLAW:

I also direct and want my estate to be shared in accordance with the English Law and as contained in this Will having chosen English Law to guide my transactions and affairs in my life time notwithstanding the fact that I married more than one wife and notwithstanding the fact that I am a Muslim.”

I am of the further view that the points in issue in the originating summons relate to points of law as to whether or not the deceased who died as a Muslim could make a will under the Wills Act notwithstanding the existence of a local legislation. The learned trial Judge considered the provisions of the Wills Law Cap 168 Laws of Kwara State of Nigeria which came into force on 15th August, 1991. The relevant portion for the purpose of this appeal reads thus:

Section (4) of the Wills Act provides

“It shall be lawful for every person to bequeath or dispose of by his will executed in accordance with the provision of this Edict, all property to which he is entitled, either in law or in equity, at the time of death.”

Provided that the provisions of this Edict shall not apply

“(a) ……………………………………………………

(b) to the will of a person who immediately before his death was subject to Islamic Law.”

The Learned trial Judge was right when he held thus:

“The Will dated 3rd September purporting to be the last Will of a Muslim Alhaji Disu Ajibaiye governed by Muslim Personal Law disposing by will all his property in accordance with the Will Act 1837 of England having regards to S.4 (1) the Wills Law of Kwara State is invalid null and void.

Consequently, all the plaintiffs 8 reliefs are hereby granted.” I am of the firm view that the cases of National Bank -vs.- Lady Alakija and other cases cited by the Learned Counsel for the Appellants are not apposite to the facts of this case under consideration in this appeal. This issue is resolved in favour of the Respondents against the Appellant.

Issue No.3, is whether the learned trial Judge was right in the determination of the suit without a proper consideration of the affidavit evidence placed before him and with the use of extraneous facts and/or matters. On this issue Learned Counsel for the Appellant contended that a careful look at the 21 paragraphs in support of the originating summons filed by the Respondents on pages 4 – 6 of the record is not the same as the 21 paragraphs affidavit in support of Originating Summons quoted in part by the Learned trial Judge on pages 98 – 100 of the record. The Learned Trial Judge relied on the quoted paragraphs to arrive at his conclusion. He submitted that apart from paragraphs 1, 2 and 7 which can be said to be part of the 21 paragraphs in support of Originating Summons, the other paragraphs quoted by the Learned trial Judge do not from part of the 21 paragraphs of the said Affidavit in support of the Originating summons.

Learned Counsel submitted that by considering extraneous facts and or matters, the lower court has failed to act as an impartial arbiter, a situation that had occasioned a miscarriage of justice. The lower court has therefore constituted itself the plaintiffs’ unsolicited counsel supplying facts by way of affidavit which does not exist. This interest of the lower court had weighed in the mind of the court to arrive at a wrong decision. He urged the court to note that the Learned trial Judge claimed to have quoted part of the 21 paragraphs and it was not paraphrased which would have given the Learned trial Judge the choice of using his own words. He referred the court to the case of A. S. Coker and Adeyemi Adetayo & Ords (1992) 6 NWLR (Pt. 249) 612 at page 625 paragraph G – H.

He contended that the use of extraneous facts and matter affected the learned trial Judge’s evaluation of the Affidavit evidence placed before him. The learned trial Judge seemed to agree with the argument of the Plaintiffs’ counsel that the 3rd defendant (now Appellant) was given more than 2/3 of the deceased Testator’s estate which according to him is contrary to Islamic Law (see page 101 paragraph 2 of the record. However, the argument of the counsel to the plaintiff did not place before the lower court the relevant Islamic Law Provision, neither was any material placed before the court to determine the worth of the property of the Testator. To agree with the plaintiffs therefore would mean having to use extrinsic materials or facts to arrive at his conclusion. He submitted that the court cannot be made a mathematician in chambers nor is he allowed to investigate the matter or to speculate what the situation is likely to be. What is 2/3 of the estate is a fact which could lend itself to mathematical calculations and which requires the necessary indices, facts and figures to be placed before the court. He further submitted that the trial is not an investigation. The function of the court is to decide between the parties on the basis of what has been so demonstrated and canvassed. He relied on DALFAM NIGERIA LIMITED AND OKAKU INTERNATIONAL LIMITED (2002) FWLR (Pt. 96) 510 held 20 or at page 541 paragraphs C-D. OJOGBUE AND NNUBIA (1972) 6 SC 227. FNB PLc and Obeya (1998) 2 NWLR (Pt. 537) 205. He urged us to resolve this issue in their favour.

For his part, Learned Counsel adopted his arguments proffered in respect of issues 1 and II and further submitted that the learned trial Judge considered material facts and not extraneous facts in arriving at the conclusions in his judgment. Learned Counsel contended that the main issues for determination in the Originating Summons as hereinbefore stated are purely issues of law. And the Learned trial Judge determined them in favour of the plaintiffs and against the defendants not just by the affidavit of the parties alone but also by the declaration of the deceased in exhibits A and A1 at the time the purported Will was made.

The learned trial judge did not consider extraneous issues of facts at all. The complaint of the appellant in ground 6 of the appeal (which is rather abusive, argumentative and without basis) goes to no issue. This is because the affidavit quoted by the trial judge at pages 98 – 100 of the record of proceedings (which is not extraneous but part of the case as will be shown infra) was not pronounced upon or used or construed by the judge anywhere in the judgment against the appellant in any way whatsoever.

Learned Counsel submitted that even though the appellant alleged that the affidavit was construed against her and that miscarriage of justice has been occasioned; it has not been shown from the record of proceedings where the learned trial judge used the said affidavits against her or at all. The truth of the matter is beyond quoting the affidavit, the judge did not refer to it again throughout the judgment (and your lordships are urged to scrutinize the judgment critically) to discover the truth. The claim of miscarriage of justice by the appellant therefore is baseless, unfounded and a desperate attempt to find fault at all cost with the judgment of the trial court. He relied on the cases of Larmie -vs. Data Processing (2005) 12 SCNJ 299 at 314 – 315.

A closer look at the judgment of the Learned trial Judge would reveal the fact that apart from quoting the said affidavit at pages 98 – 100, the trial judge did not’ follow it up to say anything about it or make any decision or pronouncement on it.

The trial Judge throughout his judgment did not decide on any point or issue on 2/3 sharing of the deceased’s estate.

What the Appellants Counsel referred to in page 101 of the record of proceedings is not the decision of the court. The learned trial Judge was only reviewing the submission of the plaintiffs’ counsel and he equally reviewed the submission of counsel for the defendants.

In the case of Larmie -vs.- Data Processing (2005) 12 SCNJ P. 299 at 314, the Supreme Court per Onnoghen J. S. C. held that:

“We must always bear in mind that it is not everything a judge says that should constitute a subject of a ground of appeal particularly when what is said does not go to the root of the matter as decided by the court. In the instance case, the court merely made an observation and did not follow it up with an order setting aside the award of the said interest by the trial court. ”

The allegation of miscarriage of justice leveled against the Learned trial Judge is devoid of any foundation at all because if any thing, it is even her own affidavits that were given more detailed and closer analysis and attention by the learned trial Judge. He dealt so much from 2nd and 3rd paragraphs of page 100 of the record of proceedings on 3rd defendant’s (appellant’s) affidavit.

In the case of Larmie -vs.- Data Processing (supra) the Learned Noble Lord Onnoghen, J. S. C. further held that:

“…To result of in the invalidation of the decision of the lower court, as canvassed by the learned Counsel for the appellant, it must be demonstrated that the error was substantial and formed the basis of the decision complained of and resulted in a miscarriage of justice. The law is that it is not every error committed by the lower court that will result in the judgment of that court being set aside by the appellate court. ”

My Lords, a hard look at the judgment of the learned trial Judge will reveal the fact that the affidavit quoted by him is not extraneous to the case at all (and though it was not used apart from its being quoted) the affidavit is part of the record as can be seen from pages 14 – 16 of the record of proceedings. The submission of the learned counsel that the affidavit is non-existent is not only untrue but misleading. Though the trial judge did not use the said affidavit, even if he did, it would still be in order since it forms part of the record of the trial court.

It is also to be noted that the trial Judge considered and reviewed the submission of the parties as can be seen at pages 101 – 107 of the record, where inter-alia held thus:

“One very important issue to resolve is whether or not a Muslim who has children out of wedlock and sells and/or consumes alcohol ceases to be a Muslim. A person who has not expressly renounced his faith not withstanding any aberration or transgression of Islamic injunction remains a Muslim if he commits any transgression or act of impropriety, he can only be sanctioned in accordance with the law of his faith… It will therefore appear too judgmental to conclude that for any act(s) of impropriety, aberration or transgression he is no longer a Muslim…”

The learned trial Judge as can be gleaned from the record held the view that the testator did not renounce his faith even at 90 years and also maintained that no alcohol should be consumed at his funeral ceremonies which should be strictly in accordance with Islamic rites. These are the things the testator himself declared in Exhibits A and A1, the purported will he made. These are all issues raised by the 3rd defendant and even the 1st defendant in their affidavits. Where then is the miscarriage of justice or bias as alleged by the counsel to the Appellant? I am of the considered view that there is none and cannot see any. I am strengthened in my view by the decision of the apex court in the case of Azookwu -vs.- Nwokanwe (2005) 5 SCNJ P. 192 at 203 where Kalgo JSC held that:

“Where bias is alleged against court or Judge it is not the real likelihood that the court or Judge did favour one side at the expense of the other that is important, it is that any person looking at what the court or judge has done, will have the impression in the circumstances of the case that there was real likelihood of bias.”

In the light of foregoing, I am of the firm view that the learned trial Judge considered material facts (and not extraneous matters) in arriving at the conclusions in his judgment and there was no bias on the part of the trial judges in assessing and evaluating t he affidavit evidence placed before him. This issue too is resolved against the Appellant.

The 4th issue for determination is whether the failure of the learned trial Judge to consider and make specific findings and pronouncement on the counter and further counter affidavit of the 1st defendant and the admissibility of Exhibits A and A1 is fatal and a miscarriage of Justice.

On this issue, Learned Counsel to the appellant contended that though several affidavits were filed by both parties, a careful look at the judgment of the learned trial Judge reveals that he did not consider the said affidavits filed by the 1st Defendant in arriving at his conclusion which has been held to be a travesty of justice. He relied on the case of Taisa (W. A) Ltd -vs- Xtoudous Services Nig. Ltd (2002) FWLR Pt. 126 P.956.

Learned Counsel submitted that the principle of adjudication that is fundamental to administration of Justice is that, a court is bound to consider every material aspect of a party’s case placed before it. He further submitted and urged us to hold that the counter affidavit and further counter affidavit of the 1st defendant together with Exhibit K attached to it is a material evidence which must be considered. Being a suit by way of originating summons, that is the only evidence adduced by the 1st defendant whom same evidence, as it were, was unduly jettisoned by the learned trial Judge. This he submitted amounts to travesty of justice and denial of fair hearing. The duty of the trial court is to adequately evaluate the evidence adduced in a case and make appropriate finding of facts in respect of all issues arising in the case and material to the determination of the case. He relied on the cases of Ozigbe -vs- Aigbe (1977) ii NSCC 389; Bank of the North and Julius Babatunde and 1 Or (2002) FWLR (Pt. 119) 1452 at 1466 paragraph E.

On Exhibits A and A1, photocopies of the Will of the Testator attached to the Affidavit in support of the originating summons of the plaintiff/respondent, he urged us to hold that the Learned trial court did not make a definitive pronouncement on the admissibility of the Exhibits. It is his submission that Exhibits A and A1 formed part of the relevant public documents which their admissibility are guided by sections 109, 111, 113 and section 97 (2) (c) of the Evidence Act. Exhibits A and A1 being photocopies of public documents just attached to the affidavit do not qualify to be relied upon for the purpose of trial. He relied on the cases of Araka – vs.- Egbue (2003) 17 NWLR (Pi. 848) P. 18, Paragraphs D – H, PDP -vs- Sidi Ali (2004) FWLR (Pt. 220) 1371 at 1384 – 1385; Jacob -vs- AG Akwa Ibom (2002) 1 NWLR (Pt. 765) 18 and Kabo Air Ltd-vs- Inco Beverages Ltd (2003) FWLR 944 at 947, Learned Counsel urged us to resolve this issue in their favour.

Learned Counsel for the Respondents submitted that the complaint of the appellant that the learned trial judge did not make a definite pronouncement on the admissibility of Exhibit A – A1 (the purported Will) is again without any foundation.

He referred to page 107 of the record of proceedings (last 2 paragraphs thereof) where the learned trial judge again reviewed the submissions of counsel for the parties and held that Photostat copy of public documents are admissible. Learned trial Judge again set out to consider whether or not the WILL was competently before the court. Learned Counsel urged us to resolve this issue in their favour.

It is appropriate on the onset to have another hard look at the judgment of the learned trial Judge with a view to finding out whether or not pronouncement on the admissibility of Exhibits A – A1 was made by the lower court. At page 108 of the record, the learned trial Judge held thus:

“The next issue for determination is whether or not the will is competently before the court as the only document that can be set aside is the one that is competently before the court.”

Again, in paragraph 3 of the same page, the learned trial judge further held that:

“This court has held that the WILL is competently before the court and as such this court can competently consider and deal with matters arising from it.”

My Lords, may I say that in the light of the foregoing findings of the Learned trial Judge, it will not be correct to say that the learned trial judge did not make definitive pronouncement on the admissibility of exhibits A-A 1.

I am of the considered view that the contention of the Learned Counsel of the Appellant that the learned trial Judge did not make definitive pronouncement on the admissibility of Exhibits A and A1 has occasioned a miscarriage of justice cannot hold water. This issue is also resolved against the Appellant in favour of the Respondents.

The next issue for our consideration is issue No. 5 which is whether the failure of the learned trial Judge to give effect to ‘Exhibit K’ attached to the Counter-Affidavit of the 1sl Defendant being a record of proceedings of the Probate Registry of Kwara State has occasioned a miscarriage of justice. Learned Counsel for the Appellant, contended that there was no time the existence of proceedings in Exhibit K was denied. On the said Exhibit, some of the plaintiffs herein were present especially the 2nd and 3rd at the probate registry on 15/4/2004 when the Will of the Testator was read and they admitted the fact that Exhibit A1 was the Will of the Testator and that it was authentic.

Learned Counsel urged us to hold that Exhibit K is a judicial act/proceeding and section 150 Evidence Act has clothed same with a presumption of regularity making it proper and legal. Again Learned Counsel urged us to hold that since the 2nd and 3rd plaintiffs have consented and/or admitted the authenticity of and validity of Exhibit A1, the plaintiffs are precluded from contending that Exhibit A1 is invalid, null and void. He relied on the cases of K. Koiki -vs- B. V. Magnusson (2001) FWLR (Pt. 63) 167 at 188 – 189 (paragraph H-B) and Ukalgbu -vs- Ugoji (1991) 6 NWLR Pt. 196) P. 127. Learned Counsel submitted that a decision of the court is perverse when it ignores the facts or evidence before it and when considered as a whole, amounts to a miscarriage of Justice. In such a case, an appellate court is bound to interfere with such a decision and set it aside. Learned Counsel urged us to resolve this issue in their favour.

For his part, Learned Counsel for the Respondents submitted that whatever is contained therein cannot validate exhibits A – A1 the purported WILL. Quite contrary to the submissions in the appellant’s brief (which is erroneous) the alleged proceedings in exhibit K cannot validate the purported WILL which is ab initio void or invalid for having been made firstly, under the English Law (Wills Act 1837) a statute of general application which is no longer applicable in Kwara State (as already canvassed under our issue II in this brief) secondly, the testator declared, professed and affirmed his faith in Islam (as he declared on the face of the WILL itself) making him a person subject to Islamic personal law. And this being the case, the learned trial judge held at page 111 of the record that:

“The WILL dated 30th September, 2002 purporting to be the last WILL of a Muslim Alhaji Disu Ajibaiye governed by Muslim personal law disposing of all his property in accordance with the Wills Act of 1837 of England having regard to Section 4(1) of the Wills Law of Kwara State is invalid, null and void.”

Learned Counsel further submitted that the contents of Exhibit K could not have altered anything neither could it have led the court to give judgment in favour of the applicant.

The question to be asked at this stage is whether in view of the decision of the Learned trial Judge reproduced above, the contents of Exhibit K could, if taken into consideration altered the decision of the Learned trial Judge. I am of the firm view that it can not validate the WILL which is ab initio void for being contrary to the Wills Act of Kwara State. With the local legislation in existence, the Testator could not have validly made a will under the W ills Act 1 837, a statute of general application which is no longer applicable in Kwara State.

That aside, Exhibit K suffers multiple credibility problems. The appellant who is raising dust about the document was not even present at the probate registry when an alleged Will was read. Again the person named as number 2 on Exhibit 2, swore to an affidavit which is at pages 77 to 78 of the record of proceedings in which he denied ever being present at the purported proceedings recorded in Exhibit K and was not in a position to make the statements ascribed to him in the said proceedings.

In the light of the above, this issue, like the previous issues is resolved against the Appellant.

Issue No. 6 is whether the Learned trial judge was wrong when he nullified and invalidated the Will of Alhaji Disu Ajibaiye dated 30th September, 2002 and then went ahead to rely on the provisions of the same document. Learned Counsel for the Appellant contended that since the plaintiffs as per their reply to counter affidavit of the 1st Respondent on pages 55 – 56 of the record held the view that Exhibit A1 could not have been made by the Testator, yet the plaintiffs never presented any other will in court during trial. Learned Counsel submitted that the trial court did not make any finding on whether Exhibit A1 was the Will of Alhaji Disu Ajibaiye or not.

Learned Counsel urged us to hold that since the court did not agree that the Will, Exhibit A1 was the document made by the Testator, the court could not invalidate or nullify same as it was presumed that there was no will before the court. He urged us to hold that the learned trial Judge erred in law when he invalidated the will of the testator when the existence of the same was denied by the plaintiffs. He urged us to resolve this issue in their favour and against the Respondents.

A closer look at the originating summons filed by the Respondents at the lower court will reveal the fact that the existence or otherwise of Exhibit A1 was not an issue before the court. In the originating summons filed by the Respondents, two questions were raised for the court’s determination as follows:

“1. Whether the documents dated 30th September, 2002 purporting to be the last WILL of Alhaji Disu Ajibaiye is valid having regard to the Wills Law of Kwara State.

2. Whether the Late Alhaji Disu Ajibaiye being a Moslem and Governed by Moslem Personal Law could make the document dated 30th September, 2002 purporting it to be a Will under English Law having regards to the Wills Law of Kwara State.”

Needless to say, the trial court as stated a while ago was not asked to make any pronouncement on the existence or otherwise of Exhibit A1 and was not bound to make one. This being the case, the argument of Learned Counsel in issue No. six is of no moment in this appeal. This issue (Issue six) is resolved against the Appellant and in favour of the Respondents.

In the final analysis, in the light of all that I have said above, this appeal must be and it is hereby dismissed as lacking in merit.

The judgment of the lower court is hereby upheld and I award N10,000.00costs in favour of the Respondents against the Appellant.

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Other Citations: (2007)LCN/2178(CA)