Alhaji Saibu Yekini Otun V Sindiku Ashimi Otun (2004)

LAWGLOBAL HUB Lead Judgment Report

A. KALGO. JSC 

By a writ of summons dated 10th of April 1984, issued out of the High Court of Justice Ibadan Oyo State, the appellants, as plaintiffs, claimed against the respondents, the following reliefs: –

“1. A declaration that the letter of administration granted the first defendant by the second defendant to administer the estate of late Ashimi Otun on 22nd November 1982 is null and void and is of no effect and all actions taken by and dealings made by the first defendant in pursuance of the said grant be declared null and void and of no effect.

An order of Revocation of the letters of administration granted the first defendant at Ibadan on 22nd November 1982 to administer the estate of late Ashimi Otun on the ground that the first defendant is not entitled to the grant and that the grant was obtained on false suggestion by the first defendant.

An injunction restraining the 1st defendant from acting on the said Letters of Administration or otherwise deal with the plaintiffs’ family property”.

The appellants also filed an affidavit sworn to by the 2nd appellant containing 21 paragraphs and titled “Affidavit Proceeding Writ of Summons”. Thereafter, the parties filed their respective pleadings and exchanged them between themselves. At the trial, the appellants called 4 witnesses and the respondents called 3, and their respective counsel summed up their cases at the end of the trial. The learned trial judge, Adeyemi J. delivered his judgment on 12th July 1985 dismissing the entire claims of the appellants. The appellants appealed to the Court of Appeal against the dismissal and the Court of Appeal dismissed their appeal. They now appealed to this court.

In this court only the appellants and the 1st respondent filed and exchanged their briefs of argument as required by the rules of court. The appellants raised 4 issues for the determination of the court, which read: –

“1. Whether the appeal of the appellants received the treatment it deserved in the Court of Appeal with regard to the treatment of the grounds of appeal and the issues formulated therefrom and thereby wrongly confirmed the judgment of the learned trial judge.

Whether the failure of the Court of Appeal to consider the case of Adesanya V. Otuewu (1993) 1 NWLR (pt. 270) 414 relied upon by the appellants has prejudiced the appeal of the appellants and occasioned a miscarriage of justice which led the Court of Appeal to wrongly confirm the judgment of the learned trial court. Or what is the correct Native Law and custom applicable to this case in the light of evidence before the court?

Whether the Court of Appeal has not misconceived the appellant’s grounds for revocation of Letters of Administration with grounds for removal of head of a family in failing to hold that a case for revocation has been made out?

Whether on a proper consideration of the appeal, on merits, the appellants are entitled to succeed in this case?”.

For the 1st respondent, the following 3 issues are set out in the brief: –

“1. Was the Court of Appeal right in affirming the decision of the trial court that as between the 1st Defendant/Respondent and the 1st plaintiff/appellant, the 1st Defendant/Respondent is the proper person to be appointed the head of the Ashimi Otun family having regard to the established applicable native law and custom.

Whether or not the Court of Appeal was right in affirming the judgment of the trial court refusing to nullify and or revoke the Letter of Administration granted to the 1st Defendant/Respondent to administer the estate of late Ashimi Otun.