Benedict Ojukwu V. Louisa Chinyere Ojukwu & Anor (2000)

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UBAEZONU, J.C.A.

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his appeal arose out of the ruling of an Nnewi High Court presided over by Ononiba J. The appellant as the plaintiff in the lower court. He sued the 1st respondent claiming as follows:-
1. A declaration that the said Late Christopher Ojukwu is not the father of the 2nd defendant.
2. A declaration that the said Late Christopher Ojukwu died leaving only three female issues as between him and the 1st defendant.
3. A declaration that the 2nd defendant is not a member of the Ojukwu family of Okpuno Ebenator Uruagu Nnewi, and cannot inherit therefrom.
4. An order of injunction restraining the defendants either by themselves, agents or privies from insisting that the 2nd defendant is a member of the Ojukwu’s family of Okpuno Ebenator, Uruagu Nnewi and should inherit therefrom.

The 2nd respondent who is the son of the 1st respondent was later joined as the 2nd defendant. The 1st respondent was formerly married to the full brother of the appellant. On the death of her husband, Christopher Ojukwu, in 1987 the appellant re-married to one Gregory Agupusi. She however had three female children by her first marriage.

The 2nd respondent was subsequently born on the 25th September, 1989 a little over two years after the death of Christopher Ojukwu the first husband of the 1st respondent. Although the 2nd respondent was born during the marriage of the 1st respondent to Gregory Agupusi yet he was named Tochukwu Ojukwu instead of Tochukwu Agupusi.This is in spite of the fact that Gregory Agupusi apparently acknowledged the paternity of the 2nd respondent.

The appellant duly filed his statement of claim which contained the above facts. Although a number of properties was mentioned or referred to in the statement of claim yet there was no specific claim in this suit as regards the said properties. The claims before the court as set out above were for declaration and injunction. The declaration and injunction claimed do not concern any of the properties referred to in the statement of claim.

The respondents, pursuant to Order 10 of the High Court Rules of Anambra State, filed a demurrer asking that the suit be dismissed on the grounds, that:
(a) the appellant had no locus standi to bring the suit;
(b) the statement of claim did not disclose any valid or reasonable cause of action against the respondents in this appeal;
(c) the suit is frivolous, vexatious and constitutes an abuse of the process of court;
(d) the reliefs sought will not effectively determine the dispute and will serve no useful purpose.

On 8/10/97 the lower court delivered its ruling and dismissed the suit.
Against the ruling, the plaintiff/appellant has appealed to this court. He has also filed his brief of argument in which he formulated five issues for determination, viz:
(a) Whether the learned trial Judge was correct to have dismissed the appellant’s claims on the admitted facts disclosed in the statement of claim.
(b) Whether the learned trial Judge was correct in holding (as he did) that the appellant had no locus standi to bring the action in the lower court.
(c) Whether the learned trial Judge was correct in his holding that the failure to join the three female children of the respondent was fatal to the appellant’s case therefore a ground for refusal of the claims and dismissal of the suit.
(d) Whether the appellant’s case was so manifestly and incurably bad in law that no amendments however ingenious would cure the defects?
(e) Whether the learned trial Judge was correct in holding that failure to aver the nature of marriage contracted by Christopher Ojukwu was a vital omission in the appellant’s statement of claim which rendered his suit unjusticiable or wrong in law?

Although the appellant’s Counsel formulated five issues, he argued only four issues and mixed the issues up in his argument – a rather careless presentation. He did not make any mention of locus standi in his first issue but he argued it as his first issue. Locus standi which is the crux of this appeal is contained in his second issue. I will therefore review his argument on locus standi first. Counsel submits that the learned trial Judge in his ruling-stated that the plaintiff (appellant) does not claim that he is entitled to the property of late Christopher Ojukwu by the custom and did not indicate his interest beyond being the head of Ojukwu family. Counsel refers to Okoye v. Lagos State Government (1990) 3 NWLR (Pt.136) 115 at 117 and 118 where the Court of Appeal held that when a party’s standing to sue is in issue in a case, the question is whether the person whose standing is in issue is a proper person to request an adjudication of an issue and not whether the issue is justiciable. He submits that the question whether or not a claimant has sufficient justiciable interest or sufferance of injury or damage depends on the facts and circumstances of the case. It is submitted that interference or threatened interference with an individual’s property will always sustain an action for declaration or injunction. He refers to Oloriode v. Oyebi (1984) 1 SCNLR 390; (1984) 5 SC 1 at 28; Adesanya v. President of Nigeria (1981) 5 SC 112 at 115. Counsel contends that applying the above principles to the undisputed facts of this case, the appellant as the Head of Ojukwu family is entitled to sue to protect the property mentioned in the claim.

Learned Counsel argues his 5th issue as the second issue, that is, whether the failure to aver the nature of marriage contracted by Christopher Ojukwu and 1st respondent was fatal to the appellant’s claim and therefore rendered the suit unjusticiable or wrong in law. It is submitted that the lower Court was in error in dismissing the suit on the fact that the Administration of Estates Law does not discriminate between male and female children. Counsel says that the learned trial Judge went outside the case before him and started speculating on the nature of the marriage between Christopher Ojukwu and 1st respondent. The nature of the marriage, the provisions of the Administration of Estates of Deceased Persons Law were matters raised suo motu by the trial Judge and decided upon without affording the parties the opportunity of addressing the court on them. Counsel refers to and relies on Ayisi v. Akanji (1995) 7 SCNJ 247; (1995) 7 NWLR (Pt.406) 129.

On the third issue formulated by the appellant’s Counsel, that is, whether the failure to join the three female children of the marriage was fatal to the claim for declaration in that, as the trial Judge found, their interest in their father’s estate is being threatened, learned Counsel contends that in nowhere in the statement of claim is it pleaded that the children’s interest in their father’s estate was threatened.

Furthermore, non-joinder of necessary parties is not envisaged by Order 10 rule 1 of the High Court Rules of Anambra State. In Okafor v. Nnaife (1973) 3 ECSLR (Pt.1) 261, the Supreme Court struck out the case for non-joinder. The Supreme Court did not dismiss the suit.

The 4th issue argued by the appellant in his brief resembles the 1st issue formulated by him. He states as follows in his brief:
“The fourth issue for determination in this appeal is whether the learned trial Judge was correct in dismissing the appellant’s suit based on demurrer application.”

I shall review this fourth issue as the 1st issue formulated in the brief. Learned Counsel submits that all the averments in the statement of claim are deemed admitted for the purposes of a demurrer. The admitted facts entitle the appellant to the reliefs claimed. He refers to Nwama Lines Ltd. v. Elder Demster Agencies Ltd. & Ors. (1966 – 67) 10 ENLR 15; David v. Abdul Cader (1963) 1 WLR 834. It is submitted that two of the grounds upon which the learned trial Judge dismissed the suit, viz: non-joinder of necessary parties and non-disclosure of the nature of marriage are issues upon which more light would be thrown on trial. Furthermore, in the case of Chief Dr. Irene Thomas v. Olufosoye (1986) 2 SC 325; (1986) 1 NWLR (Pt. 18) 669, the Supreme Court held that in matters of this nature, dismissal of a party’s suit must be such that no amendments however ingenious would cure the defects complained of.