Geraldine uchechukwu nzeribe v. Henry ugochukwu nzeribe & anor (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HARUNA SIMON TSAMMANI, J.C.A. (Delivering the Leading Judgment)

This appeal is against the judgment of the Abia State High Court, Aba Judicial Division delivered by Ory Zik Ikeorha; J on the 13th day of July, 2009.

The Appellant was the Defendant in the court below, while the Respondents were the Plaintiffs. The Plaintiffs/Respondents, claim at the Court below was for:

1. A DECLARATION that the LAST WILL of Dr. Reuben Chukwudinma Nzeribe, Medical Director of Saint Anthony’s Hospital Limited, Aba (deceased) made on 25th day of March, 1972 has not been implemented to the letter by the Defendant and her agents and privies as far as the plaintiff is concerned.
2. ORDER that the Sections 5, 6, 7, 8 and 15 for the said WILL be implemented fully by the Defendant and her privies or agents to the benefits of the plaintiffs estate of the said Doctor Reuben Chukwudinma Nzeribe from the time of his death up to date of which estate the plaintiff is a beneficiary.
3. ORDER for an account by the Defendant or her agent/agents or representatives of all earnings and income of the estate.

At the hearing the plaintiffs/Respondents called the 1st Plaintiff/Respondent who testified that, they are biological children of late Dr. Reuben C. Nzeribe, and that the Defendant/Appellant is their half – sister. That the late Dr. Reuben C. Nzeribe made a will wherein he appointed Mrs. Benedict N. Nzeribe as trustee and executor of the said will. That by the said will, some benefits were left for the plaintiffs/Respondents. He stated further that, he made several demands on the Defendant/Appellant to make his benefits available to him, but she failed to give him anything. That several letters were written to the Defendant/Respondent by his solicitor, yet she failed to do anything for him. The said will and the letter were tendered and admitted in evidence as Exhibits “A” and “B” respectively.

The Defendant/Appellant did not call any evidence at the trial, as the application to enable her do so was refused by the trial court. The trial court believed the case of the plaintiffs/Respondents and proceeded to give judgment in their favour. It is against that judgment that the Defendant/Appellant has filed this appeal.

The Appellant initially filed a Notice of Appeal dated the 27/7/09 and filed the 04/8/09. Another Notice of Appeal dated 10/8/09 was filed the 10/8/09. The Appellant subsequently withdrew the Notice of Appeal dated 27/7/09 and filed 04/8/09, while adopting that filed the 10/8/09. This appeal has therefore been argued on the Notice of Appeal dated and filed the 10/08/2009. The said Notice of Appeal as contained at pages 130-133 of the Record of Appeal consists of three (3) Grounds of appeal. They are hereunder reproduced without their particulars as follows:

1. The Learned Trial Judge misdirected himself in-law when he entertained this suit and entered judgment therein, awarding the three reliefs contained in the judgment in favour of the plaintiffs against the Defendant.
2. The Learned Trial Judge misdirected himself in-law in entertaining the suit when from the nature of the reliefs sought by the plaintiffs and the evidence adduced by the plaintiffs, particularly Exhibit A, the court lacked the jurisdiction to entertain the suit.
3. The Learned Trial Judge erred in-law by fairing to appreciate that in view of Exhibit A produced by the plaintiffs, and the failure of the plaintiffs to produce the documents pleaded in paragraph 5 of their statement of claim, their suit is clearly incompetent and the Learned Trial Judge lacked the jurisdiction to entertain it.

As required by the Rules of this Court, parties filed and exchanged Briefs of Argument. The Appellant’s Brief Arguments was dated the 06/2/2010 and filed the 15/2/2010. Therein, two (2) issues were distilled for determination as follows:-

1. Whether the learned Trial Judge had the jurisdiction to entertain the suit of the plaintiffs as constituted (Ground 2)
2. Whether the Plaintiffs (Respondents) established any cause of action or proved their case against the Defendant (Appellant), to justify the judgment entered in their favour by the learned trial Judge. (Grounds 1 & 3).

The Respondents’ Brief of Argument was dated the 14/4/2010 and filed the same date. It was however deemed filed the 19/2/2013 vide Motion on Notice dated and filed the 14/4/2010. The issues formulated by the Appellants were adopted by the Respondents as the issues arising for determination in this appeal.

Arguing issue one, learned Counsel for the Appellant submitted that, the court below lacked the jurisdiction to entertain the suit as constituted, because:

(i) the necessary parties who are in fact, indispensable parties to the suit were not before the court. That the trustee and executors named in Exhibit A are indispensable parties to the suit.

(ii) the Plaintiffs did not by their pleadings establish that the Defendant/Appellant is neither (sic) a trustee nor an executor of the Will (Exhibit A), so as to make her a necessary party and a party who would answer to the claim. That no cause of action has therefore been disclosed against the Appellant as to sustain the action as constituted.

(iii) by the above state reasons, the suit was improperly constituted and therefore the trial court lacked the jurisdiction to entertain the suit or make an award in favour of the Respondent against the Appellant.

Learned Appellant’s counsel then referred to the case of BUHARI v. YUSUF (2003) 14 NWLR (pt. 841) p.446 at 519 paras. B-F, to submit that the trustees and executors named in Exhibit A are indispensable parties without whom, the court would not have the jurisdiction to adjudicate on the Respondents’ suit. That there is no way an issue of administration of the estate of Dr. Reuben c. Nzeribe can be adjudicated upon without the persons who are named as the administrators of the estate under the will (Exhibit A). The cases of YUSUF v. DADA (1990) 4 NWLR (pt.146) p.657 at 682 paras. A-C; OJUKWU v. KAINE (1997) 9 NWLR (pt. 522) p.613 at 637 paras C-D; SOLOMON v. SOLOMON (1979) Vol.2 FNLR p.138 at 141 and REIS v. MOSANYA (1964) L.H.C.R. p.19 at 30 were cited in support. That there was nothing either in the pleadings or the evidence led by the Respondents at the trial to show that the Appellant was at any time, either a trustee or executor of the estate of Dr. Reuben C. Nzeribe. That the pleading at paragraph 7 of the statement of claim is speculative, as it shows that the Respondents do not know whether the Appellant was appointed a trustee and executor or not. That in any case, neither the Appellant nor her mother could make such appointment as Exhibit A shows that there are four executors and trustees to the said Will excluding the Appellant’s mother.

It was further submitted by learned counsel for the Appellant that, there was also no evidence that the Appellant was in control of the estate, other than the testimony of P.W.1 that she was living within the estate where St. Anthony’s Hospital is located. He further submitted that the fact that the Appellant who is also a beneficiary under the will is living within the estate without more, does not make such beneficiary the executor or trustee of the said Will. Furthermore, that the Respondents failed to account for the remaining trustees and Executors when they commenced this action against the Appellant. That this failure to join the said Trustees and Executors rendered the suit incompetent and therefore the court below lacked the jurisdiction to hear and determine same. We were accordingly urged to hold that the suit was not properly constituted as regards the parties and that no legal cause of action was established against the Appellant.