Ekanem Ansa Okoho Otudor & Ors. V. Ekpo Ansa Okoho Otudor & Anor (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

KUMAI BAYANG AKAAHS, J.C.A.( Delivering the Leading Judgment)

The Claimant/Applicant, suing by her next friends took out an Originating Summons against the Defendants/ Respondents jointly and severally seeking a determination of the following questions:-

“1. Whether it was right both procedurally and in substantive law for the Defendants/Respondents to issue and/or obtain another Letters of Administration in 1995 or any other time by the same Probate Division of the Cross River State High Court, when infact the existing Letters of Administration issued by the same court in 1974 was neither revoked nor nullified by an (sic) competent court of law.

2. Whether in view of an existing Letters of Administration issued by a competent court of law to 1974 this court would be right in law to nullify the subsequent Letters of Administration issued over the same property, same having been issued in error.
3. Whether if the subsequent Letter of Administration issued to the 1st Defendant/Respondent over the estate of Ansa Okoho Eyo Otudor automatically abate, pending any order from a competent court”

Consequent on the determination of the questions raised the Claimant sought the following reliefs:

“WHEREOF the claimant claims against the Defendants/Respondents jointly and/or severally as follows:

(i) A determination that the subsequent Letters of Administration issued by the 2nd Defendant/Respondent and obtained by the 1st Defendant/Respondent is invalid, null and void and of no Legal effect.

(ii) A declaration that the Letters of Administration issued by the 2nd Defendant/Respondent in 1974 to Mrs. Ako Ansa Otudor (deceased), the then sole surviving widow of Mr. Ansa Okoho Eyo Otudor is valid and subsisting, same having not been revoked or nullified by any competent court of law.

(iii) An order setting aside the Letters of Administration issued by the 2nd Defendant/Respondent in 1995 to the 1st Defendant/Respondent, same having been issued in error,”

Francis Bassey, the 1st Next of Friend of the Claimant deposed to a 22 paragraph affidavit in support of the Originating Summons and annexed three exhibits.

Upon being served with the Originating Summons, the 1st Defendant/Respondent filed a 13 paragraph Counter-affidavit thereby joining issues with the Claimant. This elicited a further affidavit from the claimant after which learned counsel submitted written address.

In the judgment delivered on 13th April, 2010 the learned trial Judge observed that she was being called to determine whether it was right to obtain a second letter of administration when the first was not revoked which is different from being called to interprete the wordings of an instrument. The learned trial Judge also identified other issues in the dispute which cannot be determined through Originating Summons. She then held that the Originating Summons was incompetent and proceeded to dismiss the suit.

Aggrieved with the decision, the claimant now appellant appealed and submitted the following four issues for determination which the first Respondent adopted:-

1. Whether given the facts and exhibits before the court Originating Summons is appropriate to determine the issues in controversy.
2. Whether the learned trial Judge can validly make a finding suo motu on the issue of 1st Defendant’s paternity when it is not an issue canvassed before the court.
3. Whether the learned trial Judge is correct in law to dismiss the suit after making a finding for evidential proof.
4. Whether given the weight of evidence before the court the Appellate court can validly interfere and grant the reliefs sought at the lower court, of the four issues formulated, the issue that is central to this appeal is issue No. 1. The other issues are peripheral. It is needless to say that the learned trial Judge cannot pronounce the Originating Summons incompetent and then proceed to dismiss the suit since the jurisdiction of the court has not been properly invoked.

The proper order the court can make in such a circumstance is an order striking out the suit or at best order for the filing of pleadings. There are a plethora of authorities which state that where a court holds that it has no jurisdiction to entertain an action it does not dismiss the action but merely strikes it out. See DIN v A.G, FEDERATION (1986) 1 NWLR (Pt. 170) 471; INAKOJU v ADELEKE (2007) 4 NWLR (Pt. 1025); OJORA v. ODUNSI (1959) 4 FSC 189; AKINBOLA v. PLISON FISKO (NIG.) LTD. (1988) 4 NWLR (PT.88) 335; ONAGORUWA V. INSPECTOR GENERAL OF POLICE (1991) 5 NWLR (PT.193) FISKO (NIG) LTD. (1988) 4 NWLR (Pt. 88) 335; ONAGORUWA v INSPECTOR GENERAL OF POLICE (1991) 5 NWLR (pt.193) 593; UDO V. CROSS-RIVER STATE NEWSPAPER CORP. (2001) 14 NWLR (pt.732) 116.

I do not think that a pronouncement on the validity of Exhs. ‘A’ and ‘C’ attached to the Originating Summons would prejudice a consideration of the paternity of any of the children of late Ansa Okoho Otudor who are entailed to benefit from his estate.