Ekpe Ansa Okoho Otudor V. Ekanem Ansa Otudor (2006)

LawGlobal-Hub Lead Judgment Report

NWALI SYLVESTER NGWUTA, J.C.A.

The Respondent, as plaintiff, instituted Suit No C/222/95 in the High Court of Cross River State, Calabar Judicial Division against the appellant, as defendant. He claimed the following reliefs:

“1. An order of perpetual injunction restraining the defendant by himself or his servant, agents, privies or representatives in interest from interfering or intermeddling in any way or shape with the estate of the deceased Ansa Okoho Eyo Otudor.

2. An order of perpetual injunction restraining the defendant from presenting himself as the lawful administrator or representative of the deceased’s estate in any other way, however.
3. A declaration that the letters of administration dated 30th day of March, 1995 and issued to the defendant herein is null, void and of no effect.”

Pleadings were duly filed and exchanged and trial in the matter opened before Ekpe, J. on 1st December, 1998. After the evidence in chief and cross-examination of Francis Bassey as PW1 learned counsel for the defendant (respondent herein) set down four issues for the trial Court to determine, pursuant to Ord. 24 r. 3 of the High Court Rules of Cross River State. The four issues, lifted from paragraph 11 of the statement of defence are as follows:

“i. That the plaintiff’s suit is not properly constituted.

ii. That it is not open to the plaintiff or anyone else to contend that the defendant who is a Nigerian citizen by birth has no proprietary interest in the property of his late father having regard to S. 39 (2) of the 1979 Constitution of the Federal Republic of Nigeria.

iii. That even then in the light of the pleadings and evidence before the Court, the plaintiff has not been able to establish any legal ground for the revocation or impeachment of the letters of administration duly granted by the Court.

iv. That the reliefs claimed by the plaintiffs are not sustainable in Law”

Issue No (iii) is curious for at the time the statement of defence was settled, the plaintiff had not offered any evidence in proof of his claim.

This issue was lifted from the statement of defence.

The learned trial Judge took the submissions of learned counsel on the issues raised and on 18/2/2000 delivered a considered ruling in the matter. In its ruling the trial Court regarded the issues set down by the appellant as technicalities and formulated two issues of its own from counsel’s arguments:

“1. That the defendant is not the son of the deceased whose estate he has letters of administration to administer.

2. That the letters of administration ought to be revoked on the grounds that the plaintiff is not the recognized son of the deceased Ansa Okoho Otudor.”

(See page 53 of the records). The Court held “From the totality of all the evidence so far adduced and the exhibits filed herein, this Court is minded to hold the following views:

1. That the plaintiff Ekanem Ansa Otudor is indeed of unsound mind as majested in the hospital records and has rightly and legally chosen Francis Bassey her best friend to act on her behalf.
2. That the defendant Ekpe Ansa Okoho Otudor alias Ekpe Ansa Eyo has not from the pleadings satisfied this Court of his paternity and that the deceased Ansa Otudor never acknowledged the defendant’s paternity until his death in 1971.
3. That the letters of administration dated 30/3/95 was not rightly issued to the defendant as the defendant has not been so acknowledged by his father and thus cannot share in his estate after his death. Consequently, judgment is hereby granted to the plaintiff as per the writs of summons.” (See pp.54-54).

Aggrieved by the said ruling the defendant, now appellant, appealed to this Court on six grounds.