Chief Solomon Obioha & Ors V. Mrs. Ify Obioha (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

FREDERICK O. OHO, J.C.A. (Delivering the Leading Judgment)

In the High Court of Imo State of Nigeria Holden at Orlu Judicial Division, Judgment was delivered on the 21-6-2010 in suit No. HOR/149/2008 in favour of the Plaintiff/Respondent when learned trial Judge granted the Claims of the Plaintiff and awarded in her favour the right to take control and manage her deceased husband’s estate to be included in a letter of administration to which Court declared she was qualified to apply for.

The Court also ordered the 2nd Defendant to render an account of all rents collected and proceeds from D85 Head Bridge to the Claimant and her Children and a restraining Order against the Defendants, their agents, servants etc. from interfering, confiscating, controlling or laying claims over any property that constituted the estate of the claimant?s deceased Husband. The Respondent as Plaintiff commenced this suit by writ of summons filed on the 20-8-2008 and by a Statement of claim dated 28-1-2009 at paragraph 17 claimed the following:

“17. WHEREFORE the Plaintiff claims against the Defendants jointly and severally:

1. A DECLARATION that the

Plaintiff by virtue of her marriage to the deceased and sole partner in the acquisition of all property that constitutes the estate of the Husband is entitled to the control, management and application for letters of administration. 2. A Declaration that the Plaintiff is entitled to the Ownership and control of all properties listed on paragraph 7 of this claim to the exclusion of all the defendants who may only advise.

3. A Declaration that the 2nd Defendant renders account of all rents collected and proceeds from D85 bridgehead be declared to the Plaintiff?s and the Children.
4. Perpetual Injunction restraining the Defendants their agents, servants or privies from interfering, confiscating, controlling or laying claim over any property that constitutes the estate of the plaintiff?s Husband.

The Defendant/Appellant herein denied the claims of the Plaintiff/Respondent through the filing into Court of a Statement of defense dated the 19-3-2009 and filed same date.

?Parties fielded their witnesses in the trial and at the close of hearing learned Counsel addressed Court extensively, citing a plethora of decided cases. The learned trial Judge delivered

its Judgment on the 21-6-2010 giving judgment in favour of Plaintiff/Respondent.

Dissatisfied with the judgment of the lower Court the Defendants/Appellants have appealed to this Court vide an original Notice of Appeal dated 28-6-2010 and filed on 1-7-2010 containing a Ground. However, by an application to that effect, the Appellant sought the leave of Court which was granted and the original Notice of Appeal was amended allowing for the filing of an Additional Eight (8) Grounds of Appeal bringing it all to nine (9) which without their particulars are reproduced as follows;

GROUNDS:

1. The learned trial judge erred in law when he assumed jurisdiction in this suit.
2. The learned trial judge erred in law in entertaining the suit, subject matter of this Appeal when it lacked the jurisdiction to do so.

?3. The trial High Court 2, Orlu Imo State erred in law to have chosen without any reason one out of the two separate statements of claim filed by the Plaintiff without first inviting any addresses by the parties Counsel despite the argument without any reason of the trial High Court in his judgment that the reliefs in the 1st statement of claim ?were however

overtaken by the reliefs in the claimant?s statement of claim dated and filed on 12th of February, 2009.?

4. The trial High Court erred in law to have given judgment to the plaintiff based on the pleadings only and unproved facts.
5. That the trial High Court was biased when he pre-empted his judgment in the suit when he made the pronouncement in a ruling concerning the material issues in dispute in the substantive suit whereas the parties have not testified by adopting their depositions and possibly cross examined, did not conduct pre-trial conference and even interfered by debarring the claimant from answering material questions during her cross-examination.
6. That the claimant has no locus standi to institute the suit which is a probate action.
7. The trial High Court erred in law to have held that the marriage between the claimant and Victor Obioha (the deceased) was subsisting by the time the action was commenced.
8. That the trial High Court erred in law to have admitted evidence at variance with the pleadings.
9. The trial High Court erred in law to have given judgment to the plaintiff not based on evidence but on the pleadings.

?Parties filed and

exchanged briefs of argument. In the Defendant/Appellants? (hereinafter called; ?the Appellants?), brief of argument was settled by Mrs. N. D. Iwu dated 31-7-2013 and filed 14-8-2013. Three (3) issues were nominated for the Court?s determination to wit: