Joseph Ekwebelam V. Mrs Grace Ekwebelam & Anor (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOJEED ADEKUNLE OWOADE J.C.A.: (Delivering the Leading Judgment)

This is an appeal from the judgment I of Justice Maranzu J. in Suit No. HOW/121/92 delivered at the Imo State High Court Owerri on 21st day of August 1997.

By a Writ of Summons dated 24/4/1992 followed by a statement of claim dated 21/7/1992, the 1st Respondent as plaintiff before the court below claimed against the 1st defendant (now Appellant) as follows.

(a) A declaration that the letters of Administration granted by the Probate Registrar, High Court Owerri to the defendant, dated 9th September, 1985 was obtained by fraud in that the letters of Administration was granted pursuant to a forged letter dated 6th March 1985 purportedly written by Dr Sebastian A. Ekwebelam, the late husband of the Plaintiff and younger brother of the defendant, which letter purportedly authorized the defendant to be granted the letters of Administration of the Personal Estate of their late father Mr. Felix Soronnadi Ekwebelam to the exclusion of the said Dr. Ekwebelam, when in fact the said letter was never written by Dr. Sebastian Ekwebelam, and neither the Hand-writing nor signature thereof belonged to Dr. Ekwebelam, and in consequence of the said forged letter dated 9th September, 1985 the Probate Registrar was deceived and misled into granting the letters of Administration to the defendant.

(b) An Order of Court nullifying the said letters of Administration granted to the defendant, being that the said letter of Administration was granted to him in error, and based on false pretences and fraud.

(c) A declaration that the property known as and called No. 9 Okigwe Road Owerri is not part of the Estate or Property granted to the defendant by the High Court under the said letters of Administration, and so, the defendant has no right, powers or authority whatsoever over the said property based on the said letters of Administration.

(d) A declaration that the two main rooms, one store room in the main building, and one room at the out building of the property known as No. 9 Okigwe Road, Owerri belonged to the late Dr. Sebastian A. Ekwebelam, having been bequeathed to him from the estate of his late father (and father of the defendant), Mr. Felix Soronnadi Ekwebelam, and as such, falls within the estate of the said Dr. Sebastian A. Ekwebelam, now vested on the Plaintiff by virtue of the WILL of the said Dr. Sebastian A. Ekwebelam, which was re-sealed in this court on the 29th day of May, 1980.

(e) An Order of court compelling the defendant to render full, TOTAL AND COMPLETE ACCOUNTS OF all monies collected by him from Tenants and/or all persons in respect of the said Rooms and store, from July 1989 till judgment is delivered in this suit.

(f) Injunction restraining the defendant, by himself, his servants, Agents and Assignees from dealing with the said property generally and the aforementioned Rooms, particularly, in any manner detriment to or inconsistent with the rights of the plaintiff over same, or from putting tenant, collecting rents, managing, running or interfering with the said Rooms in any manner whatsoever.

(g) An Order of Court compelling the defendant to return to and/or surrender to the plaintiff the original of the certificate of occupancy issued to the said DR. EKWEBELAM by the IMO STATE GOVERNMENT, and Registered as No. 51 at page 51 in volume 237 of Lands Registry Owerri, as well as the original of the POWER OF ATTORNEY dated 28th September, 1987 and Registered as No. 84 at page 84 in volume 414 of the Lands Registry Owerri, granted to the said Dr. Ekwebelam by Daniel O. Nnadi, which documents the defendant illegally and fraudulently signed for and collected from one EMMANUEL O. EMENYONU, and which documents the defendant has refused, failed and/or ignored to return to the plaintiff despite several and repeated demands by both the plaintiff and officials of the Ministry of Lands Owerri.

In the court below, the parties exchanged pleadings and by the order of the said court, the Probate Registrar was joined as the 2nd defendant in the suit. The relevant pleadings of the parties on which the judgment of the court below was founded are as follows.

1. Plaintiffs/1st defendant’s statement of claim dated 21/7/92 and filed on 22/7/92.
2. Amended Statement of Defence by 1st defendant dated 19/11/96 and filed on 20/11/96.
3. Statement of Defence of 2nd defendant dated 17th March, 1995
4. Reply to the defendant’s Reply to 2nd Defendant’s Statement of Defence dated and filed 18/5/95.
5. 1st Defendant’s Reply to 2nd Defendant’s Statement of defence dated and filed 18/5/1995.
6. Amended 1st defendant’s rebuttal to plaintiffs Reply to 1st Defendant’s Statement of Defence.

The case of the 1st respondent as plaintiff in the court below as it concerned the property at 9, Okigwe Road, Owerri was that her late husband who was the second son of late Felix Soronnadi Ekwebelam derived his share of Two Rooms and one store Room in the main building and one Room at the out-building which he incorporated into his WILL as his share when relations of the late Felix Soronnadi Ekwebelam shared the house at No. 9 Okigwe Road, Owerri.

The 1st defendant also said that the sharing was not only in accordance with the customary law of Owerri-Nchi-Ise that all the properties of the said Mr. Felix Soronnadi Ekwebelam belong jointly to both the Plaintiff/1st Respondent’s husband and the defendant but also consistent with the admission of the Appellant in an affidavit in a previous Suit No. L/301/80 where the Appellant deposed inter alia “That Sebastine Ekwebelam and myself are the rightful persons to administer the estate of the said Felix Ekwebelam”.

The Appellant, on the other hand averred that the build-up house at No. 9 Okigwe Road, Owerri where Felix Ekwebelam lived and died was bequeathed to him (the appellant) in accordance with Owerri Nchi-Ise custom, and to the plaintiffs husband, he granted Plot 357 Ikenegbu Layout.