The Administrator General and Public Trustee, Delta State & Anor V. Mrs. Stella Ogogo & Anor (2005)

LawGlobal-Hub Lead Judgment Report

ABBA AJI, J.C.A.

This appeal is against the decision of M. E. Akpiroroh, J. sitting in Asaba High Court in suit No. A/32/86 delivered on the 11th February, 1994.

The appellants as the Plaintiff before the lower court claimed against the defendant/respondent as per the writ of summons dated the 6th day of November, 1986 for the following reliefs:

(1) A declaration that the plaintiff is the executor of the Will/Estate of Madam Lydia Elikwu (deceased).

(2) A declaration that No.5, Marine Road, Cable Point Asaba is the property of Late Madam Lydia Elikwu.

(3) An order that defendant account for all the money received by her as rents accruing from No.5 Marine Road, Cable Point, Asaba since March 30th, 1976.

(4) An order that the defendant show cause why a fine exceeding one hundred Naira should not be imposed on her for intermeddling with the estate of late Madam Lydia Elikwu.

(5) Perpetual injunction restraining the defendant from further intermeddling with the aforementioned estate.

Pleadings were duly filed and exchanged by the parties. The facts leading to this appeal as can be gleaned from the pleadings the parties and the record of proceedings are that the 1st plaintiff, the Administrator General and Public Trustee, Bendel State of Nigeria is the executor of the last will and testament of Late Madam Lydia Elikwu who died on the 30th March, 1976 in Asaba, Delta State, to administer the property for the sole beneficiary of the Estate of the testatrix one Mr. Benedict Anwuzia Elikwu the 2nd plaintiff/appellant. The 1st appellant was granted letters of administration by the High Court of Justice, Delta State on the 14th of July, 1986 the Will having been proved and registered. In the Will, No. 5, Marine Road, Cable Point, Asaba was listed as the property of the testatrix and the defendant/respondent was alleged to be intermeddling with the property and refused to give possession to the 1st appellant. It was averred that the said No.5, Marine Road Cable Point, Asaba belonged to the testatrix who during her lifetime was an owner in possession of the said property. That the respondent continued her acts of intermeddling as executor de son tort where she continued to collect rents in respect of the property from 30th March, 1976 without accounting to any of the plaintiffs.

On the other hand, the respondent denied the appellant’s claim and states that No.5, Marine Road, Cable Point Asaba is the property of their late father Anthony Ojinma Elikwu which on his death passed to his children by Asaba Native Law and Custom. That Madam Lydia Elikwu was their father’s sister. That it was late Anthony Lydia Ojinma Elikwu who built No.5 Marine Road, Cable Point, Asaba and allowed Madam Elikwu to live on the property until her death. That No.5, Marine Road, Cable Point was never the property of Madam Lydia Elikwu that the property belongs to her father. She denied intermeddling with the property.

By an application dated the 9/2/89, the 1st appellant sought and joined the sole beneficiary of the real and personal properties of the deceased Mr. Benedict Anwuzia Elikwu in the suit as a 2nd plaintiff and was so joined by an order of court dated 14th February, 1989.

The 1st appellant testified by as legal officer, one Ben Adigwe Esq., and called six other witnesses. The 2nd plaintiff testified and called no witness. The respondent testified and called three other witnesses. At the end of the hearing both counsel addressed the court. In a considered judgment delivered on the 11th February, 1994, the learned trial Judge dismissed the appellants claim. This is what the trial Judge held in dismissing the appellant’s claim:

“As between the evidence in the plaintiff’s case and the defendant’s case, I accept and believe the evidence of the defendant’s case as truthfully stating how the land on which No.5, Marine Road, Cable Point, Asaba was acquired. I am quite satisfied on the evidence before me that the father of the defendant acquired the land in 1943 and built No.5, Marine Road which was later inherited by her. The plaintiffs have failed to prove that No.5, Marine Road, Cable Point, Asaba belongs to late Madam Lydia Elikwu. The plaintiffs having failed to prove that No.5, Marine Road, Cable Point, Asaba belongs to late Madam Lydia Elikwu they are not therefore entitled to reliefs 2, 3, 4 and 5 sought by them in their statement of claim and they are accordingly dismissed with cost assessed at N500.00 in favour of the defendant”.

The plaintiffs now appellants were dissatisfied with the said judgment and have now appealed to this court. They filed five grounds of appeal. The grounds of appeal without their particulars are hereby reproduced.