Augustine Joseph & Ors V. Jonah Joseph & Anor (2016)

LawGlobal-Hub Lead Judgment Report

JUMMAI HANNATU SANKEY, J.C.A.

This is an Appeal against the Judgment of the High Court of Justice, Gombe State sitting in its appellate jurisdiction in Appeal No: GM/83A/2007 over the Judgment of the Upper Area Court, Billiri delivered on 27-09-2007. The trial Upper Area Court had, in its judgment, distributed the estate of Joseph Polis among his heirs, and its decision was affirmed by the Gombe State High Court. Dissatisfied with the decision of the Gombe State High Court, the Appellants, with the leave of Court granted on 26-07-2013, further appealed to this Court vide a Notice of Appeal containing two Grounds. The Notice of Appeal is dated 23-08-2007 and was filed on 27-08-2013.
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A summary of the facts of the case is as follows: Joseph Polis, (deceased), the father of both the Appellants and the Respondents herein by different mothers, died intestate and left behind an estate, wives and children. During his life time, he had children with three different women namely, Abigail, Esther and Ladi, in that order. The marriage to Abigail was customary and was not fully completed, but they had a child

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together before their separation. He later married Esther in Church and they had four children, two male and two female. Of these children two died, leaving one male and one female. The parents again later went their separate ways. Thereafter, he married Ladi with whom he lived up to the time of his death. They had seven children. After his death, Esther brought an action against the 3rd wife, Ladi, seeking for the division of the estate of their late husband between the two latter wives. In the course of investigation, it was discovered that Joseph Polis had divorced Esther, and she had remarried other persons even before his demise. Based on this fact, her name was struck out from the suit for lacking in locus standi. In her place however, her two children, namely Juliana and Samaila, were brought in.
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On 10-05-2005, Jonah Joseph, the 1st Respondent herein and the son of the first wife, Abigail, also instituted an action against the third wife, Ladi, seeking for his share in his late father?s estate. Following an application brought for consolidation, the two separate suits were later consolidated on 06-06-2006. The earlier Plaintiff, Esther, had

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listed seven items which, according to her, belonged to their late husband and which should be distributed among his heirs. The items were (1) a house at Polamba, (2) a house at Kashere, (3) two bulls, (4) one cow, (5) one ploughing bull, (6) one small grinding machine and (7) six sheep.

The Defendant on her part, disputed these claims and listed only (1) cash in the sum of N710, 000.00 (Seven Hundred and Ten Thousand Naira Only), and (2) one old motor cycle, as constituting the entire estate of the deceased, claiming that the rest of the items listed by the Plaintiffs actually belong to her and her children. Being a minor, Samaila, was subsequently substituted and replaced by Ishaya Polis, a younger brother of late his late father.
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During the trial before the Upper Area Court Billiri, the Plaintiffs adduced evidence through four witnesses in proof of the validity of the marriages between the deceased and the other two wives, as well as the fact that the children named in the suit were the legitimate heirs of the deceased. The trial Court later adjourned for the Plaintiffs to call evidence to ascertain the estate left by the deceased, which was to be

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distributed among his heirs. However, no further evidence was adduced in this regard by the Plaintiffs. The Defendant did not also adduce any evidence in defence of the claim, after several adjournments had been granted and the defendant had absented herself from Court.

At the close of trial, Counsel addressed the trial Court and it proceeded to deliver Judgment. The learned trial Court listed all the items it had seen as part of the estate of the deceased when it visited the villages of Polamba and Kashere. The Court added this to the various sums of money that were alleged to be in the custody of the Defendant and her children. It put everything together and divided same as the estate of the deceased to his heirs. This included those items which the Defendant had informed the trial Court belonged personally to her and her children. The inspection report is at pages 35-36 of the Record, the evaluation report is at pages 40-42 of the Record and the distribution of the estate is at pages 44-45 of the Record.
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Aggrieved, Ladi Joseph, (the Defendant at the trial Upper Area Court Billiri), filed an Appeal against the Judgment to the Gombe State High

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Court. The original Notice of Appeal is at page 1 of the Record. While the Appeal was pending, Ladi died and the Lower Court granted an application to substitute her with the present Appellants and to file and argue additional Grounds of Appeal.
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On the 16th May, 2016, when the Appeal was called up for hearing, J.A. Oguche Esq., learned Counsel for the Respondents, argued a preliminary objection challenging the competence of the Appeal. The objection is embedded in the Respondents? Brief of argument deemed filed on 11-04-2016. The two grounds of the objection were as stated at page 13 of the Brief and the arguments thereon were set out thereafter. He adopted the arguments in support of the objection in urging the Court to uphold the objection and dismiss the Appeal, on the ground that, where there are no competent issues for determination, the Appeal is liable to be dismissed.
In reply, learned Counsel for the Appellants, P.A. Aki, Esq., submits that the Appellants? response to the preliminary objection is as contained at pages 5 to 6 of the Appellants? Reply Brief of argument filed on 25-04-2016. He adopted the arguments therein in

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urging the Court to hold that the preliminary objection has no basis, and to dismiss same as being merely an academic exercise. Thereafter, in respect of the main Appeal, Counsel adopted the Appellants? Brief of argument filed on 18-06-2015, as well as the Appellants? Reply Brief of argument, into which was incorporated arguments in response to the Respondents? Notice. He urged the Court to allow the Appeal, set aside the Judgment of the two Lower Courts, and dismiss the Plaintiffs? claim at the trial Court. In the alternative, he asked the Court to make an order of retrial.
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In response, Mr. Oguche adopted the arguments at pages 19 to 22 of the Respondents? Brief of argument (deemed duly filed on 11-04-2016) in urging the Court to dismiss the Appeal for lacking in merit. In addition, he drew the Court?s attention to the Respondents? Notice to contend that the Judgment of the Lower Court be varied, which was deemed filed on 11-04-2016. He adopted the arguments in respect of this Notice, incorporated at pages 5 to 12 of the Respondents? Brief of argument, in urging the Court to vary the order of the Lower