Azubuike Nwuke Esq V. Dr. Nwanma Beatrice Onyike (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

STEPHEN JONAH ADAH, J.C.A. (Delivering the Leading Judgment)

This appeal is against the decision of the Rivers State High Court Port-Harcourt delivered on the 29th day of April, 2009.

The facts of this case are swift and straight forward. The Respondent as Plaintiff at the Lower Court took out a writ of summons on the 17/1/2005 against the Defendant now appellant in this appeal and his mother Mrs Evelyn Ebere Nwuke (now deceased). In the writ and all the subsequent processes before that Court the Respondent endorsed her capacity as “suing as the executrix/trustee of the Estate of Late Chief J.H.E. Nwuke”. (See pages 1, 5, and 6 of the Record of Appeal).

The Appellant after filing his statement of defence at the Lower Court, raised an objection contending that the Respondent lacked the locus standi to institute the action as an executrix of the Will when her position

as executrix had been declared null and void by the Rivers State High Courts’ judgment delivered on 2/12/1983. The Appellant in presenting his objection filed a motion on notice supported with an affidavit of which he annexed a copy of the Will of late Chief J. H. E. Nwuke and the certified true copy of the judgment of the High Court delivered on 21/2/1983. The Respondent filed a reply address in response to the motion at the Lower Court. The learned trial Judge in his ruling delivered on 29/4/09 dismissed the objection of the Appellant. The Appellant being dissatisfied with the ruling has now appealed to this Court.

The notice of appeal was dated and filed on 4/5/09. The Appellant raised five grounds of appeal in the said notice and asked for the relief requesting that the ruling of the lower Court be set aside and the Appellant’s preliminary objection challenging the Claimant’s/Respondent’s locus standi be upheld and the suit dismissed in its entirety.

The five grounds of appeal were the foundation for issues raised for determination in this appeal.

The Appellant’s brief of argument was filed on 15/6/11 and the Respondent’s brief of argument was filed and deemed effective on 12/11/12 by order of court. Appellant’s reply brief was also deemed effective on 12/11/12 by Order of Court.

On hearing the appeal on 23rd day of January 2013, the learned counsel for the Appellant adopted his brief of argument and his reply brief and urged the Court to allow the appeal. The Respondent’s counsel on his own part adopted his brief of argument on that day and urged the Court to dismiss this appeal.

The Appellant in his brief raised three issues for determination.

These issues are:-

1. Was the learned trial judge right in law when he refused to consider the Appellant’s affidavit in support of his motion and exhibits thereto attached in determining the Respondent’s locus standi?
2. Whether the learned trial judge would have arrived at a different conclusion in his ruling had he considered the Appellant’s supporting affidavit and the annexures thereto.
3. Whether the learned trial judge was right to have relied on the case OWODUNNI vs. REGISTERED TRUSTEES OF THE CELESTIAL CHURCH OF CHRIST & 3 ORS (2000)10 NWLR (PT.675) page 315 at 354 – 355 cited by the Respondent’s counsel in opposing the Appellant’s objection when the case of NDIC vs. CBN (2002) 7 NWLR (Pt. 766 page 272 – 301 relied upon by Appellant in its reply on points of law is a latter decision, current and apposite on the point and in fact overrides the case of OWODUNNI vs. REGISTERED TRUSTEES OF THE CELESTIAL CHURCH OF CHRIST.

The Respondent in his own brief formulated one issue which is couched as follows:

“Whether the trial Court was right when it held that the Respondent had the locus standi to institute and maintain the action.”

The Respondent in arriving at this issue for determination submitted that the three issues formulated by the Appellant can be subsumed in the sole issue he formulated. Issues to be formulated I must say here are to be well guided in line with established guidelines. It is elementary law that issues for determination must be formulated from the grounds of appeal, whether the issues, arise from the Appellant’s brief or the Respondent’s brief. See Okpala v. Ibeme (1989) 2 NWLR (Pt.102) 208; Ehot v. The State (1993) 4 NWLR (Pt.290) 6M; Din v. African Newspaper of Nigeria Ltd. (1990) 3 NWLR (Pt.139) 392; Idika v. Erisi (1988) 2 NWLR (Pt.78) 563; Madumere v. Okafor (1996) 4 NWLR (Pt.445) 637.