Charles Omonua & Ors V. Margaret Omonua (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

RITA NOSAKHARE PEMU, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the Interlocutory decision of Justice E. O. Williams-Dawodu (Mrs.) delivered on the 26th day of October, 2011 at the High Court of Lagos State, Family and Probate Court, Lagos Judicial Division.

The Respondent (Claimant in the lower Court had claimed seven reliefs from the Appellant (Defendants in the lower court) viz:

(i) A DECLARATION that the actions of the 1st and 2nd Defendants in disposing, dissipating and intermeddling with the Estate of Late Godwin Sunday Alabi Omonuo is a breach of the duty of trust (constructive trust) imposed on the 1st and 2nd Defendants and a breach of the rights of the claimant and other beneficiaries of the Estate.

(ii) A DECLARATION that the 1st and 2nd Defendants have abused their privilege to act as administrators over the estate and are not fit to administer the Estate of the Late Godwin Sunday Alabi Omonua.

(iii) An order appointing First Trustees Nigeria Limited and the Accounting firm of David Odiwo & Co. as Administrators over the Estate of Late Godwin Sunday Alabi Omonua.

(iv) An Order of this Honourable Court appointing the Accounting firm of David Odiwo & Co. as receiver for the estate held by the 3rd Defendant until the Estate of Late Godwin Sunday Alabi Omonua is completely administered, distributed and wound up.

(v) An order of this Honourable court directing that the entire estate of Late Godwin Sunday Alabi Omonua be administered, distributed and wound up by the administrators within a period of 2 years from the judgment of this Court.

(vi) An order of perpetual injunction restraining the Defendants, their agents, privies, servants or otherwise howsoever from unlawfully selling, disposing, dealing, dissipating the real and personal of the Late Godwin Sunday Alabi Omonua.

(vii) An Order directing the 1st and 2nd Defendants to refund to the estate all monies, profits, rents and other benefits misappropriated from the Estate of Late Godwin Sunday Alabi Omonuo with on interest of 21% per annum from January, 2011 till date of Judgment and 6% interest rate from date of Judgment to final liquidation. – pages 7-8 of the Record of Appeal.

On or about the 7th of October 2011, the Appellants (Defendants in the lower Court) filed a notice of Preliminary Objection challenging the jurisdiction of the Court. In that application, the Applicants stated that there is pending before the Court a Notice of Preliminary Objection dated 23/5/2011 filed by the Defendants/Applicants challenging the legal and equitable jurisdiction of the Honourable Court to entertain the action as filed by the Claimant/Respondent which deprives the Court of the jurisdiction to entertain the Claimant/Respondents’ Motion on Notice dated 8/8/2011.

On the 18th of October 2011, the counter-affidavit filed in reply to the Notice of Preliminary Objection was said to be incompetent as it was filed out of time.

Chief Mrs. Williams Akinjide, SAN of counsel, indicated to Court on that date that they cannot file anything until the jurisdiction issue is determined – pages 498-499 of the Record of Appeal.

After further hearing on the 26th of October 2011 – pages 500-503 of the Record, the Court adjourned to the 1st of November, 2011 “for the hearing of the Claimants motion on notice, in reply to the notice of Preliminary Objection by the Defendant, and to allow the Defendant file any so that the Court may thereafter adjourn the matter for ruling once and for all”.