Princess (Mrs.) Emilia Orok V. Mrs. Glory Sam David Itauma & Anor (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MASSOUD ABDULRAHMAN OREDOLA, JCA (Delivering the Leading judgment)

This appeal is against the decision of the High court of Akwa Ibom State holden at Eket contained in the ruling delivered on 31st July, 2002 in Suit No. HEK/78/97. On an interlocutory application by the plaintiff (now 1st respondent) on 4th March, 2002 brought by, way of motion on notice for the following reliefs.

“1. An order of court directing monthly the payment of a monthly maintenance allowance of

N500,000.00 from the Estate of late Chief Samuel David Itauma (deceased) by the 1st defendant/respondent or their agents/ privies to the plaintiff/applicant towards, the welfare and upkeep of the deceased’s child called Master Godwin Samuel David Itauma (an infant) .

2. An order of court directing that such monthly maintenance allowance shall be paid into this honourable Court by the defendants/respondents to be later signed for and collected by the plaintiff/applicant on behalf of the named infant.
3. And for such further or other order(s) as this honourable Court may deem fit to make in the circumstances.”

The said motion was duly taken and argued by the learned counsel for the respective parties. In the ruling of 31st Jury, 2002, the High court of Akwa Ibom state (hereinafter called the lower court) ordered that N61,325.00 (sixty one thousand, three hundred and twenty five naira) be paid by the 1st respondent thereat (now Appellant) or her agents on her behalf to the 1st respondent (plaintiff/applicant) as monthly maintenance of allowance for the welfare and upkeep of Master Godwin Samuel David Itauma with effect from the month of July, 2002.

The appellant (as 1st respondent) felt dissatisfied with the decision of the lower court and filed after seeking and obtaining leave of this court notice of appeal on 30th January, 2003 which contains two grounds of appeal, and with the leave of this court granted on 14th May, 2008, the appellant filed one additional ground of appeal. By the same order of 14h May, 2008, the appellant was granted an enlargement of the period within which to file appellant’s brief of argument while the brief dated 3rd July, 2006 but filed on 4th July, 2006 was deemed as property filed and served.

The 1st respondent as plaintiff had commenced suit No.HEK/78/97 through the writ of summons filed on 11th August 1997 for the reliefs endorsed thereon originally against the appellant and two others (the third defendant, the Administrator -General of Akwa Ibom state was later struck out). The reliefs were also stated in paragraph 16 of the statement of claim filed on 12rh November 1997 with leave of the trial court. Hearing of the suit commenced on 3rd day of December, 2001 with the evidence of the plaintiff as PW1 and continued on 5th March, 2002. Thereafter, it was adjourned to 6th March, 2002. Meanwhile the 1st respondent herein filed the motion, that culminated in this appeal on 4th March, 2002. The motion was moved on 22nd April, 2002 and the appellant replied on 14th May, 2002, and while the 1st respondent rejoined on 14th May, 2002. Ruling of the lower court as previously stated was delivered on 31st July, 2002.

In the appellant’s brief in this appear two issues were formulated for determination. They are:

“(1) whether the trial court had the jurisdiction to order the appellant to pay the sum of N6 1,325.00 (sixty Three one thousand and Hundred and Twenty Five Naira) monthly maintenance allowance for the welfare and upkeep of the deceased infant child called Master Godwin Samuel David Itauma when there was no monetary claim for the said child in the substantive suit.

(ii) Whether Samtex Limited alleged to be generating over N3,000,000.00 profit is part of the Estate of Late Samuel David Itauma (deceased) being administered by the 1st defendant/respondent/appellant.”

In his argument, the learned counsel for the appellant, M. D. Uyoh Esq. submitted that for a party to be entitled to a relief in an interlocutory application, such a relief must have been part of the claim in the substantive action, citing Ihunde v. Samson Roger, Nig. Ltd. (2000) FWLR (pt. 16) 2782;Efe Finance Holdings Ltd, v. osagie, okeke and otegbola & co. (2002)FWLR (pt. 6) 952.

He contended that the monetary claim made by the 1st respondent in the interlocutory application had no foundation in the reliefs sought by her in the substantive claim.

The learned counsel also submitted that the lower court had no jurisdiction to entertain the application since the payment of monthly allowance was not an issue before the court in the substantive action, citing Madukolu v. Nkemdilim (1962) ANLR 589, (1961) 2 NSCC 374. He submitted that the evidence of the applicant though unchallenged could not sustain the application, citing Martchem Industries Nig. Ltd. v. M. F. Kent West Africa Ltd. (2000) 22 NSCQR 1037 and Section 139 of Evidence Act. He argued that the applicant owed the duty of satisfying the trial court upon credible evidence based on positive fact that the appellant was in control of Samtex (Nig.) Ltd. that was said to be generating on a monthly basis the sum of “N3,000,000.00 profit with the letters of administration.”

He stated that Samtex (Nig.) Ltd., as a limited liability company was not covered by the letters of administration granted to the appellant and that the lower court misdirected itself in making its order because there was nothing before the court to substantiate the claim more so that the said company and one Anietie David Itauma alleged to be managing it were not parties to the suit and cannot be bound by any order made in respect thereof. He stated that there was no source from which the amount of N61,325.00 monthly awarded by the lower court would be realized and paid.