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  • 2005-10-17
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Oshinowo v. Oshinowo

CHIEF OLADOSU OSHINOWO

V

ENG. OLADIMEJI OSHINOWO

( Suing as beneficiary )

HON. JUSTICE INUMIDUN AKANDE (MRS.)

( Suing as executor/beneficiary )

COURT OF APPEAL

( LAGOS DIVISION )

MUSA DATTIJO MUHAMMAD JCA ( Presided )

CLARA BATA OGUNBIYI JCA (Read the Lead Judgment)

MOHAMMED LAWAL GARBA JCA

CA/L/221/2003

MONDAY, 4TH JULY, 2005

ACTION - Counter-claim - Nature of - Consequence of filing a defence to

APPEAL - Evaluation of evidence - Primary function of the trial court in respect of - When appellate court will interfere with

APPEAL - Ground of appeal challenging service of process -  Nature of - Need to obtain leave to raise for the first time on appeal Section 242, 1999 Constitution considered

COURT - Evaluation of evidence - Primary duty of trial court in respect of - When appellate court will interfere with

CRIMINAL LAW AND PROCEDURE - Criminal allegations made in civil suits - Standard of proof required for

CRIMINAL LAW AND PROCEDURE - Forgery - Allegation of - Whether can be properly investigated without involving the suspect 

EVIDENCE - Criminal allegations made in civil suits -  Standard of proof required

EVIDENCE - Evaluation of evidence - Primary duty of trial court in respect of - When appellate court interfere with

EVIDENCE - Expert witness - Evidence of - Whether binding on trial court

EVIDENCE - Unchallenged averments in the pleadings - Whether deemed admitted and proved

INTERPRETATION OF STATUTES - ‘May’ in Order 25, rule 2 of the High Court of Lagos State (Civil Procedure) Rules, 1994 Whether means ‘discretion’

JURISDICTION - Filing fees -  Non-payment or inadequate payment of - Whether raises an issue of jurisdiction

PLEADINGS - Unchallenged averments in the pleadings -  Whether deemed admitted and proved

PRACTICE AND PROCEDURE - Filing fees - Non-payment or inadequate payment of - Whether raises an issue of jurisdiction

PRACTICE AND PROCEDURE -  Motion for judgment in default of defence - Whether mandatory to file

STATUTE - Lagos State (Civil Procedure) Rules, 1994, Order 25, rule 2  thereof - ‘May’ under - Whether means discretion

WILL - Genuineness and authenticity of - Proof of - On whom lies

WILL - Valid Will - Capacity for

WILL - Validity of Will - Conditions therefor

WORDS AND PHRASES - ‘May’ in Order 25, rule 2 of the High Court of Lagos State (Civil Procedure) Rules, 1994 - Whether means ‘discretion’

Issues:

1.              Whether sufficient evidence has been led to show that the deceased made a Will which was duly executed as required by law.

2.              Whether the court has jurisdiction to enter judgment for the respondents on the counter-claim as filed.

Facts:

Pa Julius Omotayo Oshinowo made a Will before his death. The Will was prepared by a firm of solicitors. The execution of the Will was filmed or recorded on a video tape. After the death of Pa Oshinowo, a dispute arose concerning the Will. The plaintiffs/respondents commenced an action in suit No. LD/168/2001 claiming against the defendant/appellant and the probate registrar for an order directing the probate registrar to release the probate of the estate of late Pa Julius Omotayo Oshinowo to the executors named in the Will dated 28/07/1998. The defendant/appellant filed a statement of defence to the action. Later, the defendant/appellant commenced another action in suit No. IKD/4/2001 against the above named plaintiffs/respondents; and the latter filed their defence and a counter-claim thereto. In the counter-claim, the plaintiffs/respondents claimed 40 million naira as damages for libel. The defendant/appellant did not file any defence to the counter-claim. The two suits were subsequently consolidated and was heard with each party calling their witnesses. The evidence led at the trial centred round the pleadings in suit No. LD/168/2001 and no evidence or argument was offered by the parties with regards to suit No. IKD/4/ 2001 . At the conclusion of trial, judgment was entered in favour of the plaintiffs/respondents both for their claims in suit No. LD/168/2001 and their counter-claim in suit No. IKD/4/2001. Unhappy with the decisions, the defendant/appellant filed this appeal.