Miss Nkiru Amobi Vs Mrs. Grace O. Nzegwu & Ors (2013)

LAWGLOBAL HUB Lead Judgment Report

MOTONMORI OLATOKUNBO KEKERE-EKUN, JSC

This is an appeal against the judgment of the Court of Appeal Enugu Division delivered on 15/12/2004 dismissing the appellant’s appeal and upholding the decision of the High Court of Anambra State, sitting at Onitsha, which granted the respondent’s reliefs as claimed.

The facts of the case are that on 28/6/1958 the late Engineer Theophilus I. O. Nzegwu married the 1st Respondent (Mrs. Grace O. Nzegwu) in London, UK. The 2nd and 3rd respondents are the surviving issues of the marriage. The said marriage broke down irretrievably consequent upon which the deceased and the 1st respondent filed a petition and cross-petition for the dissolution of the marriage. On 30/9/96 the High Court of Anambra state sitting at Onitsha, with the consent of the parties granted a decree nisi dissolving the marriage.

On 7th July 1995, during the subsistence of his legal marriage to the 1st respondent, the deceased entered into a marriage with the appellant under Onitsha Customary Law. On 23/10/96, less than 30 days after the grant of the decree nisi, the deceased allegedly married the appellant under the Marriage Act. Unfortunately the deceased died intestate on 31/10/96 at Onitsha Anambra State before the decree nisi could be made absolute.

Before his death he had by way of assignment transferred two properties in Lagos at Plot 1303A Akin Adesola Street, Victoria Island and Plot 147A & B Ogunlana Drive, Surulere to the Appellant. On 6/12/96 the 1st respondent applied to the Probate Registry at the High Court of Anambra State for Letters of Administration in respect of the deceased’s estate. The appellant entered a caveat against the application and the 1st respondent discontinued same. Sometime in 1998 the respondents again applied for Letters of Administration but this time to the Probate Registry at the High Court of Lagos State. The Appellant entered a caveat on 19/11/98.

On 10/2/99 the respondents instituted an action against the appellant at the High Court of Lagos State seeking an order “directing the grant to them of Letters of Administration of the Estate of Engineer Theophilus I. O. Nzegwu”

Pleadings were filed and exchanged. The appellant filed a counterclaim. The parties led evidence in respect of their respective claims. At the conclusion of the trial, the High Court on 22/3/2001 granted the respondents’ reliefs as claimed and dismissed the appellant’s counterclaim. The learned trial Judge also made an order directing the Attorney-General and the Director of Public Prosecutions to “arrest, try and convict” the appellant for bigamy. His Lordship further directed the respondent’s counsel “to lodge a complaint with the Police and cause the Defendant/Appellant to be arrested and charged to court for flagrantly committing an offence under Section 39 of the Marriage Act.” Not surprisingly, the appellant was dissatisfied with the entire decision and appealed to the Court of Appeal. On 15/12/2004 the Court of Appeal (hereinafter referred to as the Lower Court) dismissed the appeal and affirmed the judgment of the High Court. Still dissatisfied, the appellant has now appealed to this Court vide her notice and grounds of appeal dated 16/4/2004 containing four grounds of appeal.

The parties herein duly filed and exchanged their respective briefs of argument in compliance with the rules of this court. Both parties formulated three issues for determination from the grounds of appeal. The Appellant’s issues as contained in her brief of argument dated 21/10/2005 but deemed filed on 30/1/2013, are:

Whether the Court below was right in holding that the High Court of Lagos State had the jurisdiction to grant Letters of Administration to administer the estate of Late Engineer Theophilus I. O. Nzegwu who hailed from, lived and died in Onitsha, Anambra State.

Whether the learned Justices of the Court of Appeal were right when they held that the 1st Respondent, as against the Appellant was entitled to Letters of Administration over the estate of Engineer Theophilus I. O. Nzegwu (Deceased) and in affirming the exercise of discretion of the learned trial Judge to grant Letters of Administration to the 1st Respondent.

Whether the learned Justices of the court of Appeal were right when they held that the order or directive of the learned trial judge that the Appellant be “arrested”, “charged”, “tried” and “convicted” for bigamy was a passing remark and therefore not appealable.

The respondents’ brief dated 25/4/2006 was deemed filed on 5/5/2006.

The issues formulated are:

Was the Court below right in holding that the trial Court did indeed have jurisdiction to entertain the grant of the Letters of Administration over the estate of the deceased?