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  • Okafor v. Okafor
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  • 2002-09-16
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Okafor v. Okafor

MRS. REGINA OKAFOR

MR. CHINEDU OKAFOR

MR. FRANCIS OKAFOR

V

MRS. CAROLINE OKAFOR

MR. EDWIN CHIKE OKAFOR

MRS. VERONICA ONUG

MRS. MARY IJEOMA OKONGWU

MISS HELEN CHINYELU OKAFOR

COURT OF APPEAL

( ILORIN DIVISION )

MURITALA AREMU OKUNOLA, JCA ( Presided )

PATRICK IBE AMAIZU, JCA ( Read the Lead Judgment )

WALTER SAMUEL NKANU ONNOGHEN, JCA

CA/IL/M. 116/99

TUESDAY, 4TH DECEMBER, 2001

CONSTITUTIONAL LAW - Custom - Onus of proving observation of the same custom by two localities/towns - On whom lies

COURT - Competence of to look at documents outside applicant’s affidavit but in court’s file - Extent of - Whether also include document not forming part of records

COURT - Interlocutory application before court - Duty of court to refrain from making findings on issues that form subject of the substantive suit

EVIDENCE - Document - Document outside applicant’s affidavit but in court’s file - Competence of court to look at same - Extent of - Whether also include document not forming part of records

EVIDENCE - Documentary evidence - Documents outside applicant’s affidavit but in the case file - Competence of court to look at

same - Whether extends to documents that were never in existence during the trial

EVIDENCE - Documentary evidence - Document that came into existence after the trial court’s decision - Effect of - How treated by appellate court

EVIDENCE - Proof of applicable customary law - Onus of proof - On who lies

JUDICIAL PRECEDENT - Doctrine of stare decisis - Application of

JUDICIAL PRECEDENT - Stare-decisis - What amounts to - Application of - Relevant consideration

JURISDICTION - Issue of jurisdiction - Nature and significance of - When to raise - Effect of lack of jurisdiction on proceedings

LOCUS STANDI - Meaning of - Where a party’s locus standi is challenged -  What to consider

MATRIMONIAL CAUSES - Marriage Certificate - Where husband and wife are described as bachelor and spinster respectively therein Effect of

NATIVE LAW AND CUSTOM - Custom proved and acceptable in a particular locality - Whether automatically applies in another contiguous locality

PLEADINGS - Preliminary objection on the point of law challenging the validity of institution of a suit - Determination of - Need to make reference to the pleadings

PRACTICE AND PROCEDURE - Preliminary objection challenging the competence of a suit - How determined - Importance of statement of claim in the determination thereof WORDS AND PHRASES - ‘Locus standi’ - Meaning of

Issues:

1.            Whether the 1st, 3rd - 6th respondents who are children of the deceased are competentto institute an action to nullify the grant of letters of administration in respect of the estate of their deceased father made to wrong persons

2.            Whether a court could take judicial notice of a custom and apply it in a case when evidence of acceptability of such custom has not been led.

Facts:

The defendants/appellants appealed against the ruling of the Kwara State High Court which dismissed their preliminary objection. The facts which led to the appeal were that one Jonathan Okafor who married the 1st plaintiff/respondent under the Act died leaving behind 5 children of the marriage. Before the marriage however, the deceased had two other children, a male and female from another woman whose paternity the deceased acknowledged.

After the burial ceremony, it was discovered that the deceased made a Will, to regulate the administration of his estate. In order to prove the Will, the children of the deceased met in the family house wherein it was decided that the proving of the Will be deferred to a further date by which time, money owed to the wife of the oldest son by the estate must have been settled. During this interregnum, the wife of the oldest son of the deceased secretly applied with her son for letters of administration in respect of the estate. In the application they  described themselves as widow and son of the deceased respectively. The letters of administration were granted to them. When this became known to the other children, they instituted an action with their mother, inter alia, to nullify the grant. Before the suit was heard, the grantees and the 1st son filed a notice of preliminary  objection praying for an order striking out the names of the 1st, 3rd - 6th plaintiffs in that they have no cause of action against the defendants and also that they have no locus standi under the native law and custom. They based their objection on the ground that only sons to the exclusion of daughters can inherit deceased’s landed  property or maintain an action thereto among other grounds. The objection was dismissed. The defendants were dissatisfied with the ruling and have now appealed to the Court of Appeal.