Barbara Majomi & Ors V. Clarkson Majomi, Jnr & Ors (2007)

LawGlobal-Hub Lead Judgment Report

HUSSEIN MUKHTAR, J.C.A.

This is an interlocutory appeal against the ruling of High Court of Lagos State delivered on the 30th October 2001. The appeal as per the amended notice of appeal dated and filed 13th December 2001 is premised on the following six grounds:

(1) The learned trial judge erred in law when he ordered that the case of the 3rd plaintiff be stayed.

Particulars of Error

a) The plaintiffs’ application dated 1st June 2001 did not contain any prayer for stay in respect of the 3rd plaintiffs case in particular or entire suit in general.

b) The plaintiffs’ application was incompetent having been brought by the plaintiffs including the 3rd plaintiff who had no capacity to make the application.

c) In this premise, the court ought to have dismissed or struck out the 3rd plaintiffs name as a party to the suit.

(2) The learned trial Judge erred in law in holding that the plaintiffs are all children of Dr. Clarkson Majomi deceased when the defendants in their statement of defence and counter affidavit sworn to by Mr. Taiwo Akinpelu on 18th September 2001 denied this fact which is yet to be proved by the plaintiffs at the trial of the action.

(3) The learned trial judge misdirected himself in law by holding that he would be denying little Onome Majomi an infant her entire inheritance if he followed the decision in R. Savage vs. J. Johnson 19267 NWLR 53 which he said was persuasive only when:

(a) The plaintiffs including the infant Onome were yet to prove their entitlement to inherit the estate of the deceased.

(b) The said application dated 1st June 2001 was brought by the plaintiffs including the said Onome an infant seeking to substitute Ms. E.A. Farah as the next friend of Onome.

(4) The learned trial judge erred in law by refusing to strike out or dismiss the action when:

(a) The proper applicant was not before the court.

(b) The action as commenced by the present plaintiffs was incompetent.