Mrs. Esther Oluwatoyin Ayorinde V. Mr. Richard Ayorinde & Ors. (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHIMA CENTUS NWEZE, J.C.A. (Delivering the Leading Judgment)

The appellant herein, Mrs Esther Oluwatoyin Ayorinde, was one of the wives of Major Saka Adekunle Ayorinde (late). In a suit, which she took out as next friend of her two children, Tosin and Tolani Ayorinde, she claimed declaratory, prohibitory and restraining orders against the respondents, the Administrators and Administratrices of the Estate of Saka Adekunle Ayorinde, deceased. For their bearing on this appeal, the reliefs are set out hereunder:

1) A declaration that the defendants herein, whether jointly or severally through any of their agents, privies or assigns, are not entitled to sell, dispose of or intermeddle in anyway whatsoever with the estate, situated at Ilorin, of Late Major Saka Adekunle Ayorinde who died intestate in Ilorin.

2) An order of court prohibiting the defendants herein, whether jointly or severally, from selling, disposing of or intermeddling in anyway whatsoever with the estate of Late Major Saka Adekunle Ayorinde situate at Ilorin; which are the following:

1. Storey building at 12 Peter Tokula Street, G.R.A., Ilorin.
2. Premises and Properties of Ajibike Memorial Nursery and Primary School along (sic) airport Road, Ilorin.

3) An order of court restraining the defendants or their agents or privy 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 while he was still alive.

She anchored her claim on a promise of marriage which the late Saka Adekunle Ayorinde made to her. In sum, the case was that the said Saka Ayorinde promised to build a house for her in Ilorin if only she agreed to marry him. Above all, the said Saka Ayorinde actually built the property known as No. 12 Peter Tokula Street, GRA, Ilorin and Ajibike Nursery and primary School on Airport Road, Ilorin, for her in fulfilment of the said premarital promise which he (Saka Ayorinde) made to her in order to facilitate their customary law marriage.

The Kwara State High Court, Ilorin (coram Adebara J) (hereinafter referred to as the lower court), which heard the case, dismissed it. Aggrieved by the outcome of that judgment, she appealed to this court. Two issues were formulated for the determination of the appeal; issues which the respondents adopted in their brief of argument. They were couched thus:

1. Whether the trial court validly raised issues suo motu and justifiably determined the matter, before it, upon those issues without affording the parties the opportunity to address it on them.
2. Considering the evidence before the trial court, whether the trial judge was right in holding that there is (sic) no convincing evidence before him to establish the appellant’s claims.

This appeal will, therefore, be determined based on these two issues, first, issue 1.

Whether the trial court validly raised issues suo motu and justifiably determined the matter, before it, upon those issues without affording the parties the opportunity to address it on them.

When this matter came up for hearing, T. O. S. Gbadeyan, mni, leading T. A. Giwa; I. Akangbe; Dr. Banji Oyeleke and A. Bala, for the appellant, adopted and relied on the appellant’s brief of argument which was deemed properly filed and served on March 3, 2009. He, also, adopted and relied on the appellant’s reply brief which was deemed properly filed and served on February 15, 2010. In the main, the agitations of the appellant on this first issue were two-fold.

The first grouse comes to this: the lower court raised an issue suo motu. That issue was: whether the claimant’s statement on oath filed and admitted in the proceedings at the lower court [she testified as PW3] complied with Order 40 Rules (1) and (2) of the High Court (Civil Procedure) Rules of Kwara State? The court resolved the issue against the appellant and discountenanced the entirety of the evidence in support of her pleadings without affording her counsel the opportunity of addressing the court on it.

It was, equally, alleged that the lower court suo motu raised the issue whether the appellant was a party to the suit and, if not, whether she could rightly claim any relief with respect to the children’s benefit. Like in the first one, the lower court was, also, alleged to have resolved this issue without giving the appellant’s counsel the opportunity of addressing on it.

With respect to the first issue, it was pointed out that on June 27, 2006 when the appellant mounted the witness box as PW3, she adopted and relied on her statement on oath which she had deposed to on March 16, 2006. The lower court, accordingly, “formally deemed [the claimant’s statement on oath] deposed to by Esther Oluwatoyin Ayorinde…as part of her evidence in this case”

[page 181 of the record].