Michael Egbuziem V. Ambassador R. I. Egbuziem (2004)

LawGlobal-Hub Lead Judgment Report

ADEREMI, J.C.A.

This is an appeal against the ruling delivered by the High Court of Imo State sitting at Isiala Mbano in Mbano/Etiti Judicial Division in Suit No. HME/16/98 on the 27th April 1999. In the court below, the respondent who was the plaintiff in that court had, on behalf of himself and members of the family of the late Chief Joseph Ugoanyanwu Egbuziem, claimed against the appellant who was the defendant in that court the following reliefs:

“(1) Order nullifying the purported WILL of late Chief Joseph Ugoanyanwu Egbuziem of Ogbor Autonomous Community of Isiala Mbano within jurisdiction allegedly made on 1st March 1994 for being contrary to the Administration (Real Estate) Law of Eastern Nigeria applicable.

(2) Alternatively; An order for the defendant to prove or authenticate the purported WILL of late Chief Joseph U. Egbuziem.

(3) An order restraining the defendant by himself, servants, agents, privies or otherwise from further interference with the estate of late Chief Joseph U. Egbuziem without the consent of the named plaintiff; the family head.

(4) N100,000.00 being damages for the defendant’s unauthorized interference and usurpation of the estate of late Chief Joseph Ugoanyanwu Egbuziem relying on the said illegal WILL since April 1995.

The plaintiff/respondent thereafter filed his statement of claim dated 6th January 1999 but filed on 7th January 1999. Sequel to the service of the statement of claim, the defendant/appellant filed a motion on the 20th of January 1999 praying the court below to strike out the suit on the grounds of lack of jurisdiction and for being an abuse of court process. The grounds and particulars of the objection as stated on the body of the application are as follows:-

“(1) The court lacks the competence to entertain this suit as the plaintiff did not comply with the condition precedent contained in Order 49 rule 1(1) and (2) of the High Court (Civil Procedure) Rules 1988 on that the issue in this suit is a probate matter connected with the Estate of a deceased person.

(2) This suit seeks an order nullifying the WILL of late Chief Joseph Ugoanyanwu Egbuziem made on 1st March 1994 or in the alternative for the defendant to prove or authenticate the said WILL, and (sic) the suit is therefore a probate matter.

(3) The plaintiff lacks the locus standi to commence this suit.

The application was supported by a 12 paragraph affidavit to which an exhibit was attached. The plaintiff/respondent did not file a counter-affidavit. Arguments of counsel on both sides were taken by the learned trial Judge who in a reserved ruling delivered on 27th April 1999 wherein he dismissed the application held inter alia:-

“The questions that are raised in this motion are:

(1) Whether this suit is a probate matter or an application for the grant of letters of administration as envisaged by Order 49 High Court Rules?

(2) Whether the applicant can raise point of law under Order 24 without filing statement of defence?