Henry Emodi & Ors. V. Orakwue Emodi & Ors. (2006)

LawGlobal-Hub Lead Judgment Report

GALADIMA, J.C.A.

This is an interlocutory appeal against the ruling of Uzodike (J) in suit No.A/56/2004. It was in an estate matter in which the respondents had sued as plaintiffs asking for a declaration that the appellants who were sued as defendants have no lights to dabble into the estate of late Nnanyelugo Godfrey Umunna Emodi and a declaration that appellants were “Administrators de son tort.” They further asked for an order of court commanding the 2nd and 3rd defendants to account to them for their illegal administration from 22nd December, 2002 and order of perpetual injunction restraining the defendants from dabbling into the administration of the estate of the said Nnanyelugo Godfrey Umunna Emodi.

Parties filed and exchanged pleadings. After close of pleadings the plaintiffs through their counsel filed a motion on notice dated 6/4/04 praying the court to appoint the Administrator-General/Public Trustee or any other fit and proper person as a receiver/manager of the estate of the deceased pending the hearing and determination of the substantive suit. The defendants filed a counter-affidavit. The said motion was argued and on the 20/7/2004 the court below delivered a ruling in favour of the plaintiffs against which the defendants herein, as appellants have appealed.

The appellants in their brief of argument formulated the following one issue for determination:

“Whether the court can at the instance of the plaintiffs (now respondents) who the court rightly held are not children of the deceased, Nnayelugo Godfrey, Umunna Emodi appoint a receiver of the estate of the said deceased intestate.”

The respondents, who by order of extension of time, filed their brief of argument on 4/10/2005, raised an issue similar to that of the appellants as follows:

“Whether or not the order appointing the Administrator General/Public Trustee receiver/manager of the Estate of late Nnanyelugo Godfrey Umunna Emodi in the circumstances of this case is rightful.”

On 16/1/2006, this appeal was heard. Learned counsel for the appellants, Chief C. C. Ogbo, Esq., adopted their brief of argument without further amplification on the argument on the sole issue and urged us to allow the appeal. The learned counsel for the respondent Chief Ikenna Egbunna, Esq. adopted the brief he filed on behalf of the respondents and also-urged us to dismiss the appeal.

The argument put up by the appellants is that the law relating to the appointment of receivers is that a court cannot appoint a receiver except in aid of an existing right. It is not enough for the applicant to show that there is an issue to be tried. That such an applicant must also elicit a strong prima facie right which deserves protection by the court. Reliance was placed on the cases of Julius Uwakwe & Ors. v. John Agom Odogwu (1989) 5 NWLR (Pt.123) p. 562 and Jannasons Coy Ltd. v. Paul Uzor (1991) 4 NWLR (Pt.183) p.1.

It is the submission of the learned counsel for the respondents that the learned trial Judge rightly exercised his discretion in the appointment of a receiver in this case; more so when the appointee is Administrator-General/Public Trustee of State Government who has no interest in the estate he administers. It is urged that the appeal be dismissed as no material has been brought to the court to warrant it to substitute or set aside the rightful exercise of discretion by the court below.

The application was brought by the respondents praying the lower court, for the appointment of the Administrator-General/Public Trustee or any other fit and proper person, as receiver/manager of the estate of late Nnanyelugo Godfrey Umunna Emodi, pending the healing and determination of the substantive suit. The application was brought pursuant to section 21(1) of the High Court Law and Rules of Anambra State which made elaborate provisions for the appointment of a receiver and the circumstances requiring such appointment.

Section 21(1) of the High Court Law provides as follows:

“The court may grant an injunction or appoint a receiver by an interlocutory order in all cases in which it appears to the court to be just or convenient to do so.”

Order 17 rule 1 of High Court of Anambra State (Civil Procedure) Rules provides as follows: