Mrs. Eno Ekpuk V. Mrs. Bassey Ita Okon (2005)

LAWGLOBAL HUB Lead Judgment Report

EJIWUNMI, J.S.C.

The main question that falls for determination in this appeal appears to be, whether the Court of Appeal was right in upholding the judgment of the trial court upon these set of facts and also with regard to the previous actions before the courts below, apart from that which resulted in this appeal.

The background facts of this case that led to this appeal may be put thus: The respondent was first married to the late Captain Ita Orok Okon under native law and custom in April, 1965. At the time when that marriage took place, and though Captain Ita Orok was in Liverpool, England, the appellant being his sister, arranged the marriage on behalf of her brother. The respondent thereafter travelled to England to join her husband. There the couple went through another ceremony of marriage under the English Marriage Law sometime in 1967. They thereafter lived and cohabited in London and Cardiff before returning to Nigeria in 1974. During that period, Ita Orok Okon was studying under the scholarship of the Nigerian Ports Authority. Upon the completion of his course of studies, he returned to Nigeria and was employed by the Nigerian Ports Authority as a Marine Captain. In that capacity, he worked in Apapa, Lagos where he lived with his wife, the respondent. He was later transferred to Calabar where they went together and continued to live together until that relationship suffered a severe setback. As a result, the couple started living separately. Before that happened however, the couple had bought a house in London which they sold before returning to set up a home in Nigeria. With the proceeds of the sale, the couple built a house of flats at 28 Eyo Ita Street, Calabar, and also built a second house at 9 Nsefik Layout in Calabar.

I must in this narration refer to three events that occurred during the marital life of the couple. The first is that during their sojourn in the U.K., Ita Orok Okon, now deceased, took ill and was hospitalised. It was discovered that he had thrombotic epitods as one of the main arteries to his brain clotted up. Though he was operated upon, it was not possible to do anything to the artery and in consequence, he became partially blind and partially paralysed. But he carried on with his life and work in spite of his disabilities. Secondly, there was no direct issue of the marriage. The couple however adopted a baby boy in 1975 at the Magistrate Court, Ikeja, Lagos and named him Edem Orok Ita Okon. The respondent also claimed that the deceased had a daughter by another woman while he was in school and she allegedly lived with the parents of the deceased. That daughter named Mabel Okon was 27 years old at the time of the death of the deceased on 4th of February, 1986. Thirdly, the couple before the death of the deceased lived apart from each other from about 1983. And about the end of January, 1984, the deceased filed a divorce suit against the respondent for the dissolution of the marriage. But before that action could be resolved, the deceased died on the 4th of February, 1986. Following the death of her husband, Marine Capt. Ita Orok Okon, the respondent as plaintiff, instituted an action in suit No. C/149/86 against Mrs. Eno Okon Ekpuk, the appellant herein and one Bassey Offiong. The second suit (suit No. C/41/87) was instituted against the Administrator-General of Cross River State thus:

“(a) A declaration that the plaintiff is entitled to the administration of the estate of Captain Ita Orok Okon (late) to the exclusion of all others particularly the defendants.

(b) An injunction restraining the defendants by themselves, their servants and/or agents from meddling in the said estate.”

As these two cases relate to the administration of the estate of the late Captain Ita Orok Okon, they were consolidated and tried by Koofrey, C. J., Cross River State. In a reserved judgment delivered on 5th January, 1990, the learned trial Chief Judge dismissed the respondent’s case in the consolidated action with N500.00. The court also made a consequential order:-

“That the plaintiff (respondent) should surrender all the properties of the late Captain Ita Orok Okon including those owned jointly with her to the Administrator-General, the defendant in suit No. C/41/87 for proper administration in the interest of all parties concerned in the estate of the late Captain Ita Orok Okon.”

As the plaintiff (respondent) was not satisfied with that judgment, she appealed to the Court of Appeal. For the determination of that appeal, the Court of Appeal (Coram Awogu, Oguntade, Akintan, JCA) considered the following as the issues that properly arose from the appeal: –

“(1) Whether the learned Chief Judge’s findings of fact and conclusions were wrong and/or perverse so as to warrant an interference by an appellate court having regard to the circumstances of this case and particularly the strained relationship between the plaintiff and her late husband, and her late husband’s relatives surviving;

(2) Whether in the circumstances of this case, it was wrong in law to have granted administration to the 1st defendant to administer the late Captains’s Estate;

(3) Whether the learned trial Chief Judge committed any procedural or illegal acts in the course of the trial which has caused a substantial miscarriage of justice necessitating the setting aside of the judgment”

Then immediately after those issues were set down, Akintan, JCA (as he then was) and who wrote the leading judgment, made the following observations:-

“Strictly speaking, the main issue for determination in this appeal is the 6th issue formulated by the appellant. This is so, having regard to the fact that the plaintiff’s claim was for a declaration that she was entitled to the administration of her late husband’s estate to the exclusion of all others, particularly the defendants/respondents … ”