Augustine Joseph & Ors V. Jonah Joseph & Anor (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JUMMAI HANNATU SANKEY, J.C.A.(Delivering the Leading Judgment)

This is an Appeal against the Judgment of the High Court of Justice, Gombe State sitting in its appellate jurisdiction in Appeal No: GM/83A/2007 over the Judgment of the Upper Area Court, Billiri delivered on 27-09-2007. The trial Upper Area Court had, in its judgment, distributed the estate of Joseph Polis among his heirs, and its decision was affirmed by the Gombe State High Court.

Dissatisfied with the decision of the Gombe State High Court, the Appellants, with the leave of Court granted on 26-07-2013, further appealed to this Court vide a Notice of Appeal containing two Grounds. The Notice of Appeal is dated 23-08-2007 and was filed on 27-08-2013.

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A summary of the facts of the case is as follows: Joseph Polis, (deceased), the father of both the Appellants and the Respondents herein by different mothers, died intestate and left behind an estate, wives and children. During his life time, he had children with three different women namely, Abigail, Esther and Ladi, in that order. The marriage to Abigail was customary and was not fully completed, but they had a child

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together before their separation. He later married Esther in Church and they had four children, two male and two female. Of these children two died, leaving one male and one female. The parents again later went their separate ways. Thereafter, he married Ladi with whom he lived up to the time of his death. They had seven children. After his death, Esther brought an action against the 3rd wife, Ladi, seeking for the division of the estate of their late husband between the two latter wives. In the course of investigation, it was discovered that Joseph Polis had divorced Esther, and she had remarried other persons even before his demise. Based on this fact, her name was struck out from the suit for lacking in locus standi. In her place however, her two children, namely Juliana and Samaila, were brought in.

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On 10-05-2005, Jonah Joseph, the 1st Respondent herein and the son of the first wife, Abigail, also instituted an action against the third wife, Ladi, seeking for his share in his late father?s estate. Following an application brought for consolidation, the two separate suits were later consolidated on 06-06-2006. The earlier Plaintiff, Esther, had

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listed seven items which, according to her, belonged to their late husband and which should be distributed among his heirs. The items were (1) a house at Polamba, (2) a house at Kashere, (3) two bulls, (4) one cow, (5) one ploughing bull, (6) one small grinding machine and (7) six sheep.

The Defendant on her part, disputed these claims and listed only (1) cash in the sum of N710, 000.00 (Seven Hundred and Ten Thousand Naira Only), and (2) one old motor cycle, as constituting the entire estate of the deceased, claiming that the rest of the items listed by the Plaintiffs actually belong to her and her children. Being a minor, Samaila, was subsequently substituted and replaced by Ishaya Polis, a younger brother of late his late father.

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During the trial before the Upper Area Court Billiri, the Plaintiffs adduced evidence through four witnesses in proof of the validity of the marriages between the deceased and the other two wives, as well as the fact that the children named in the suit were the legitimate heirs of the deceased. The trial Court later adjourned for the Plaintiffs to call evidence to ascertain the estate left by the deceased, which was to be