Alhaji Saibu Yekini Otun & Ors. V. Sindiku Ashimi Otun & Anor (2004)

LAWGLOBAL HUB Lead Judgment Report

KALGO, J.S.C. 

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.

2. 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.
3. 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.

2. 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
3. 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
4. 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.

2.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.

3. Whether or not the Court of Appeal considered the issues submitted for its determination before affirming the judgment of the trial court.”

The facts of this case are simple and straight-forward. The late Ashimi Otun, the parties’ ancestor died in June 1937 leaving 7 wives, four male children and a daughter. The appellants are the grandchildren of the later Ashimi Otun. After his death the then eldest son, Sunmola Otun became the “Dawodu” of the family and responsible for the management of the deceased estate according to the Yoruba native law and custom. Sunmola Otun died in April, 1972 and upon his death the next eldest son of late Ashimi Otun Alhaji Lamidi Otun succeeded him as the Dawodu of the said family. Alhaji Limidi Otun also died in December, 1979 leaving the 1st respondent as the only surviving male son of the late Ashimi Otun. The 1st respondent thereafter assumed the responsibility of managing his late father’s estate as the Dawodu of the family and applied to the High Court Ibadan for letter of administration for this purpose on 8th June, 1981. His application was gazetted and advertised as required by law but no objection or caveat was received from anyone in respect thereof. The 2nd respondent, as probate Registrar, issued the letter of administration to the 1st respondent on 22nd November, 1982. On 10th April, 1984 the appellants filed this action challenging the right of the 1st respondent to manage his father’s estate and asking the court to revoke the said letter of administration on the grounds that the 1st respondent was a dishonest person, not on good terms with the members of the Ashimi Otun family and was fraudulent in obtaining the grant of the letter of administration to feather his own nest.

The learned trial Judge heard all the evidence in the case and at the end dismissed the claims of the appellants. Their appeal to the Court of Appeal was also dismissed as being without merit and they appealed here.

I have carefully examined the issues formulated by the parties for the determination of this court in this appeal and it appears to me that from the grounds of appeal issues 1, 2 and 3 of the appellants are substantially saying the same thing as issues 1, 2 and 3 of the 1st respondent. Issue 4 of the appellants is merely the result or outcome of the consideration of the earlier 3 issues and can be argued together therein. I will therefore adopt the appellants’ issues as being germane for consideration in this appeal.

I am taking issue 2 first. This issue is in two parts – one or the other. I will take the 2nd part first which may involve the consideration of the first part. The 2nd part asked: What is the correct native law and custom applicable to this case in the light of the evidence before the court

Paragraphs 11 and 12 of the appellants’ statement of claim read:-