Chief Eyo Edem Nsefik & Ors. V. Roesmary Muna & Ors. (2007)

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ISA AYO SALAMI, J.C.A.

This is an interlocutory appeal against the decision of Rhodes-Vivour, J. (as he then was) delivered on 26th day of February, 2001 dismissing the plaintiffs application praying for the defendants to lead evidence but ordered that it was the plaintiff and not the defendants who should first open his case.

The plaintiff was unhappy with the decision and feeling aggrieved appealed to this court on three grounds of appeal. In compliance with the provisions of Order 6 of the Court of Appeal Rules, 2002, briefs of argument were duly exchanged and were settled at the appellants, respondents’ and appellants’ reply briefs.

At the hearing of appeal, learned counsel for plaintiffs (hereinafter referred to as appellants) adopted and placed reliance on the appellants’ and appellants reply briefs. On the other hand, learned counsel for defendants (hereinafter referred to as respondents) equally adopted and relied on the respondents’ brief of argument.

For a better understanding and appreciation of the case a succinct narration of the facts will be pertinent.

The writ of summons issued out by the plaintiff was endorsed as follows:

“The plaintiffs, claim is as the lawful husband and one of the persons entitled in the event of an intestacy to share in the estate of Mrs. Teresa Ekpenyong Nsefik (Nee Ekpenyong Eyo) late of 18, St. Gregory Road, Eko Akete close, South West Ikoyi, Lagos, Lagos State who died on 12th March 1989 to have probate of a pretended will of the deceased dated 6th July 1988 granted on 24th October 1989 revoked and the said will pronounced against and to have a grant of letters of administration of the estate of the said deceased.”(underlining mine).

The plaintiffs, prayed as per their amended statement of claim as follows:

“(a) That the Court shall revoke the said grant of probate and pronounce against the force and validity of the said will.

(b) Declaration that the said deceased died intestate.”

The defendants, who are incidentally respondents in this appeal, filed their statement of defence along with a counter claim wherein they counter-claimed as follows:

“And the defendants’ claim:-

(1) That the court shall pronounce in solemn form for the true last will of the deceased dated 6th July, 1988 and propounded by the 2nd and 3rd defendants.

(2) For the alternative, that the court do pronounce in solemn form of law for one of the said prior wills.”