Mrs. Esther Oluwatoyin Ayorinde V. Mr. Richard Ayorinde & Ors (2003)

LawGlobal-Hub Lead Judgment Report

WALTER SAMUEL NKANU ONNOGHEN, J.C.A. 

This is an appeal against the ruling of the Kwara State High Court of Justice in suit No. KWS/129/98 delivered by Hon. Justice A.A.Adebara on the 5th day of April, 2001 in which he struck out an application of the appellant on the grounds, inter alia:

“that it is an abuse of court process and that the appellant cannot approbate and reprobate.”

The facts of the case, as can be gathered from the record are that the appellant was one of the wives of Major Saka Adekunle Ayorinde (deceased) who died intestate. Before his death, the deceased is alleged to own properties including one storey building at 12 Peter Tokula Street, G.R.A. Ilorin and the premises and properties of Ajibike Memorial Nursery/Primary School along Airport Road, Ilorin. During his lifetime the deceased co-habited with the appellant in the one storey building while the appellant was responsible for managing the Nursery/Primary School.

Following some disagreements with the family of the deceased after his death, the appellant took out a writ of summons in her personal capacity against some members of the family of the deceased who were sued in a representative capacity. The appellant claimed the following reliefs:

“(a) A declaration that the defendants herein, either jointly and severally or through any of their agents, privies or assigns, are not entitled to sell, dispose of or intermeddle in any way whatsoever with the estate situate at Ilorin, of Late Major Saka Adekunle Ayorinde who died intestate in Ilorin.

(b) An order of court prohibiting the defendants herein, whether jointly or severally from selling, disposing of or intermeddling in any way whatsoever with the estate of Late Major Saka Adekunle Ayorinde situate at Ilorin which are the followings (sic):

(1) One storey building situate at Tokula Street, G.R.A. Ilorin.

(2) Premises and properties of Ajibike Memorial Nursery/Primary School, along Airport Road, Ilorin.

(3) An order of court restraining the defendants or their privies from further disturbing the plaintiff’s peaceable use and enjoyment of the house at 12 Peter Tokula Road, G.R.A., Ilorin, which house was occupied jointly with her husband when he was alive.”

The parties in that suit were:

Esther Oluwatoyin Ayorinde

and

1. Richard Ayorinde
2. Suniyu Ayorinde
3. Mrs. Kutuola Kehinde
4. Chief Tinji Ayorinde

(For and on behalf of the rest of Ayorinde family).