Anna Amir Oloyede V. Lawra Omoni Oloyede (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ALI ABUBAKAR BABANDI GUMEL,J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the Oyo State High Court delivered on 30th April, 2013 in suit No. 1/205/13.

The Respondent herein was the Claimant at the Oyo State High, Court, she claimed for herself and her children in an Originating Summons dated 15/01/13 but filed on 22/02/13. In the summons, the Respondent sought for the determination of the following 2 questions. They are:-

“1. Whether by virtue of the last will and testament of Late Captain Rufus Olaniyi Oloyede dated 6th day of March 2006, lodged at the probate registry of the High Court of Oyo State, the claimant and her children are not entitled to the possession of the house lying situate and being at NW7/82 Eleyele Ibadan (also known as NO. 28, Segun Oriola Street, Eleyele, Ibadan.

2. Whether by virtue of Order 55 Rule 30 of the High Court (Civil procedure) Rules 2010 of this Honourable Court, the Court has powers to treat the appointment of Benjamin Beyioku Oloyede as an Executor to have seized to exist.”

Upon and further to the determination of these 2 questions, the Respondent sought for the following main and alternative reliefs. They are:-

“(a) A Declaration that the Claimant is entitled to possession of the entire premises lying situate and being at NW7/82, Ibadan (also known as No 28, Segun Oriola Street, Eleyele, Ibadan).

(b) AN ORDER compelling Benjanmin Beyioku Oloyede to apply for the Probate of the estate of Late Captain Rufus Olaniyi Oloyede.

ALTERNATIVELY

(c) AN ORDER nullifying the appointment of Benjanmin Beyioku Oloyede as an executor of the Will of Late Captain Rufus Olaniyi Oloyede”.

The originating summons is supported by an affidavit of 18 paragraphs with 4 documents attached as Exhibits A to D. It was deposed to by the Respondent herself. Learned Counsel Mr. Olayinka Esan, on behalf of the Respondent, filed a written address to argue the originating Summons.

The Defendant/Appellant replied with a 19 paragraph counter-affidavit to oppose the summons. The son of the Appellant Mr. Benjamin Beyoku Oloyede filed a 17 paragraph further affidavit to oppose the summons too. Also, learned counsel, Mr. Luqman Laoye, filed a 2 page written address to oppose the reliefs in the summons. A 2nd further affidavit in support of originating summons was filed by Mr. Bandele Adewumi Oloyede. He is an executor to the will of late Testator. He is also a son of the deceased testator. This affidavit is of 12 paragraphs.

Learned counsel Mr. Esan replied to the response of the Appellant to his written address by way of a written reply on points of law. A further counter affidavit of Mr. Bandele Oloyede was deposed to and filed by Benjamin B. Oloyede.

Issues having been duly joined, the Originating Summons was argued on 11/4/2013 and judgment fixed for 30/04/2013. In its judgment, the lower court answered the first question for determination in the positive and answered the 2nd questions, in the negative. And upon its answers to the questions the court went further to enter judgment as follows:-

“(1) it is hereby declared that under the Will and Last Testament of Rtd. Captain Rufus Olaniyi Oloyede of NW7/82, Eleyele Ibadan the claimant and her children are entitled to possession of the entire premises lying and being at NW7/82 Eleyele Ibadan also known as NO. 28, Segun Oriola Street, Eleyele, Ibadan.