Chief C. O. Odumegwu Ojukwu V. Hon. Justice Kaine (Rtd) & Ors. (2000)

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MUHAMMAD, J.C.A.

Before his death on 13th September 1966, Sir Philip Odumegwu Ojukwu was the Chairman/Managing Director of Ojukwu Transport Company Limited. He left a will. He was equally survived by, amongst others, his children. The appellant before us, Chief C. O. Odumegwu Ojukwu is one of them. Others are Dr. J.O. Ojukwu and L. P. Ojukwu.

The trio were defendants in the suit which brought about the instant appeal.

The plaintiffs in the court below and now respondents, were appointed Executors/Trustees of the will of the late Sir Philip Ojukwu. It appears that the will, at the expiry of the civil war, was either lost or had become unavailable. All efforts to secure the will was to no avail. It also appears that there was agreement to reconstruct the will and have it admitted to probate. However, before the attainment of this agreed position, the appellant and 1st respondent applied for and obtained Letters of Administration to the estate of the late Sir Ojukwu. The action commenced by the plaintiffs/respondents claimed against the defendants/respondents and defendant/appellant as follows:-

(i) A revocation of the grant of Letters of Administration granted to the 1st and 2nd defendants and the same delivered up to probate registry for cancellation.

(ii) An order that the last will of Sir Odumegwu Ojukwu which was lost be reconstructed and admitted to probate.

(iii) An order that the plaintiffs/respondents with the 1st defendant/respondent be granted probate of the reconstructed will.

Trial into the suit was commenced by the then Chief Judge of the old Anambra State and subsequently continued by Justice A.O. Ezeani. Hearing into the case started on 3/3/94 after the new Anambra State had been created and the suit was assigned to the same Justice A.O. Ezeani. On that occasion only the 1st plaintiff was present in court. Other parties to the suit were absent. The first plaintiff testified and tendered exhibits E and F before the case was adjourned to 29/3/94, and 26/5/94. Subsequently, the case suffered six further adjournments before it was adjourned to 14/7/95 for judgment.

By a motion dated 21/6/95 but filed on 23/6/95, the appellant prayed the court for the following reliefs:-

(a) that it sets aside the proceedings of the court of 3/3/94 up to and including 2/6/95;

(b) to re-open the said proceedings, which judgment was adjourned to 14/7/95; to allow the 2nd defendant or his counsel cross-examine P.W.1 and D.W.1;

(c) lead evidence on the statement of defence and counter-claim filed in court; and

(d) “arrest” the judgment of Honourable Justice A.O. Ezeani adjourned for delivery on 14/7/95.

It is pertinent to note that only the plaintiffs/respondents filed counter-affidavits to the 2nd defendant/appellant’s motion.