Michael Egbuziem V. Ambassador R. I. Egbuziem (2004)
LawGlobal-Hub Lead Judgment Report
ADEREMI, J.C.A.
This is an appeal against the ruling delivered by the High Court of Imo State sitting at Isiala Mbano in Mbano/Etiti Judicial Division in Suit No. HME/16/98 on the 27th April 1999. In the court below, the respondent who was the plaintiff in that court had, on behalf of himself and members of the family of the late Chief Joseph Ugoanyanwu Egbuziem, claimed against the appellant who was the defendant in that court the following reliefs:
“(1) Order nullifying the purported WILL of late Chief Joseph Ugoanyanwu Egbuziem of Ogbor Autonomous Community of Isiala Mbano within jurisdiction allegedly made on 1st March 1994 for being contrary to the Administration (Real Estate) Law of Eastern Nigeria applicable.
(2) Alternatively; An order for the defendant to prove or authenticate the purported WILL of late Chief Joseph U. Egbuziem.
(3) An order restraining the defendant by himself, servants, agents, privies or otherwise from further interference with the estate of late Chief Joseph U. Egbuziem without the consent of the named plaintiff; the family head.
(4) N100,000.00 being damages for the defendant’s unauthorized interference and usurpation of the estate of late Chief Joseph Ugoanyanwu Egbuziem relying on the said illegal WILL since April 1995.
The plaintiff/respondent thereafter filed his statement of claim dated 6th January 1999 but filed on 7th January 1999. Sequel to the service of the statement of claim, the defendant/appellant filed a motion on the 20th of January 1999 praying the court below to strike out the suit on the grounds of lack of jurisdiction and for being an abuse of court process. The grounds and particulars of the objection as stated on the body of the application are as follows:-
“(1) The court lacks the competence to entertain this suit as the plaintiff did not comply with the condition precedent contained in Order 49 rule 1(1) and (2) of the High Court (Civil Procedure) Rules 1988 on that the issue in this suit is a probate matter connected with the Estate of a deceased person.
(2) This suit seeks an order nullifying the WILL of late Chief Joseph Ugoanyanwu Egbuziem made on 1st March 1994 or in the alternative for the defendant to prove or authenticate the said WILL, and (sic) the suit is therefore a probate matter.
(3) The plaintiff lacks the locus standi to commence this suit.
The application was supported by a 12 paragraph affidavit to which an exhibit was attached. The plaintiff/respondent did not file a counter-affidavit. Arguments of counsel on both sides were taken by the learned trial Judge who in a reserved ruling delivered on 27th April 1999 wherein he dismissed the application held inter alia:-
“The questions that are raised in this motion are:
(1) Whether this suit is a probate matter or an application for the grant of letters of administration as envisaged by Order 49 High Court Rules?
(2) Whether the applicant can raise point of law under Order 24 without filing statement of defence?
(3) Whether the plaintiff can bring this action in his personal capacity?
As regards the 1st question, the claims before the court are nullification of WILL, asking the defendant to authenticate the WILL, injunction and claim for damages. There is no claim for letters of administration or appointment of personal representatives. I am of the respectful view that even though the claim relates to the distribution of the estate of a deceased person, the claim does not relate to petition for the grant of letters of administration as envisaged by Order 48 rule 1 High Court (Civil Procedure) Rules 1988.
“On Whether the defendants can raise points of law without filing statement of defence, Order 24 rule 1 High Court Rules 1988 abolished demurrer. Under order 24(2) any party shall be entitled to raise by his pleading any point of law, and any points so raised shall be disposed of by the Judge who tries the cause at or after the trial. The defendant/applicant did not file any statement of defence before raising this objection. I am of the humble view that since demurrer has been abolished and since the defendant/applicant has not filed any statement of defence, he has not complied with the rules. Moreover, under Order 50 rule 79 suits respecting probate shall be instituted and carried on as nearly as possible in the like manner and subject to the same rules of procedure as suit in respect of ordinary civil claims. The applicant is therefore not entitled to raise points of law without filing statement of defence.
On whether the plaintiff can bring this action in his personal capacity, the plaintiff at paragraph 2 of his statement of claim averred that he is the family head of late Chief Joseph Ugoanyanwu Egbuziem’s family and it is in that capacity he has brought this action. He further averred at paragraph 10 of the statement of claim that as family head, family lands are under his control and management for the benefit of members. There is no averment that personal representatives have been appointed for the estate of late Joseph Ugoanyanwu Egbuziem or that such personal representative have stated functionary. I am of the view that in the circumstances, the plaintiff/respondent can bring the action in his personal capacity. In the circumstances, this motion is hereby dismissed.”
As I have said, it is against this ruling that the defendant has appealed to this court upon a notice of appeal dated 7th May 1999 which carries four grounds of appeal. Distilled from the aforementioned four grounds by the appellant for determination by this court are two issues, which as contained in his brief of argument are in the following terms:
“(1) Whether this suit as filed by the plaintiff/respondent is not a probate matter and therefore subject to the provisions contained in order 49 rule 1(1) and of the High Court (Civil Procedure) Rules 1988?
(2) Whether it was premature to raise the issue of jurisdiction at the time of filing of the motion on notice challenging the jurisdiction of the lower court without the filing of a statement of defence by the defendant/appellant?”
The respondent in his brief adopted issue No.1 identified by the appellant in his brief and submitted that that is the only issue arising for determination in this appeal.
When this appeal came before us on the 21st of September 2004 for argument, Mr Chukuka learned counsel for the appellant adopted his client’s brief of argument deemed to have been properly filed on 18th January 2001 and urged that the appeal be allowed. Mr Michael Egbuziem (the plaintiff/respondent) who appeared in person adopted his brief filed on 28th February 2001 and urged that the appeal be dismissed.
I have examined the two issues raised by the appellant in his brief and I am quite clear in my mind that both arise from the grounds of appeal contained in the notice of appeal. I shall therefore address them seriatim. The plank of the argument of the appellant as it relates to issue No.1 is that the plaintiff/respondent’s claim is connected with probate matter of a deceased person; therefore, it should be initiated with the probate chief registrar and if there was any need to go to court, the said chief registrar would address a letter to the Chief Judge in that regard; order 49(1) and (2) of the High Court (Civil Procedure) Rules of Imo State 1988 was relied upon. In opposition to the argument of the appellant, the respondent through his brief of argument submitted that no probate matter was involved in the claim before the court. Referring to Order 49 rule 1(1) of the High Court (Civil Procedure) Rules, it was further submitted that its provision only refer to application for the grant of Letters of Administration.
I shall start the consideration of this appeal by saying that I am in full agreement with the submission of the appellant and the respondent that in the determination of whether the court has jurisdiction to entertain a suit or not the fundamental principle of law is that it is only the claim of the plaintiff that a court must have a resort to. In other words, the jurisdiction of a court is determined by the suit of the plaintiff before it; see Adeyemi & Ors. v. Opeyori (1976) 9 & 10 SC 31. Order 49 rule 1(1) and (2) of the High Court (Civil Procedure) Rules 1988 under which the application was brought provides:
“1(1) Subject to the provisions of rules 39 and 40, when any person subject to the jurisdiction of the court dies, all petitions for the granting of any letters of administration of the estate of the deceased person, with or without a WILL attached, and all applications on other matters connected therewith shall be made to the probate registrar of the court at Owerri.
1(2) In regard to any such application, the Chief Judge shall have power to request the court of any judicial division as may appear necessary or expedient for the interim preservation of the property of the deceased within such judicial division, for the discovery or preservation of the WILL of the deceased or for any other purposes connected with duties of the court under this order, and every court shall carry out any such request as far as practicable and report to the Chief Judge.”
The wordings of rules 1(1) are plain according to them, and by their ordinary and natural meanings, they mean that upon the death of a person any petition for the grant of Letters of Administration of the estate of that deceased person shall be made to the Probate Registrar. It is upon the occurrence what is contained in rule 1(1) that rule 1 (2) will come into play. But the plaintiff/respondent has not prayed for the grant of letters of administration of the estate of late Chief Joseph Ugoanyanwu Egbuziem and by no strained construction can such a relief be read into the four legs of reliefs claimed before the court below. A careful reading of the reliefs sought by the plaintiff/respondent are for the nullification of the WILL of late Chief Joseph Ugoanyanwu Egbuziem made on the 1st of March 1994, in the alternative, an order on the defendant/appellant to authenticate the said WILL, an order restraining the defendant/appellant and his agents from further interference with the estate of the deceased without the consent of the plaintiff/respondent. The last relief is for N100,000.00 damages against the defendant for the unauthorized interference. A challenge to the validity of a WILL is a valid cause of action. The ONUS PROBANDI of it rests squarely on the proponents of the WILL to establish its validity and its due execution. See 1) Adebajo v. Adebajo (1971) 2 All NLR 276, (2) Johnson & Anor v. Maja & Ors 13 WACA 290 and (3) Amu v. Amu (2000) 7 NWLR (Pt.663) 164. The suit does not therefore come within the ambit of order 49 rule 1(1) (2) of the High Court (Civil Procedure Rules) 1988. Issue No.1 is consequently answered in the negative.
Issue No.2 poses the question whether it was premature to raise the issue of jurisdiction at the time of filing of the motion challenging the jurisdiction of the court without the defendant filing his statement of defence. True it is that DEMURRER has been abolished under the various rules of court however there are provisions in lieu of demurrer. Where a defendant perceives a point of law of which he is convinced will put an end to a case he is at liberty to raise it in limine urging the court to strike out or dismiss the action without his filing a defence nor calling any evidence. Of course at that stage the defendant is presumed to have admitted the averments in the plaintiff’ statement of claim. The rationale for the proceedings in lieu of demurrer is to save valuable time and money. By this procedure, the defendant having admitted the facts pleaded is saying no more than that the facts do not give rise to a cause of action. See (1) Foko v. Foko (1968) NMLR 441 and (2) Santa Fe Drilling (Nig) Ltd. v. Awala & Anor (1999) 6 NWLR (Pt.608) 623. This is a pure point of law. Issue No.2 is therefore answered in the negative.
In sum, this appeal is devoid of any merit. It must be dismissed. And I accordingly dismiss it with cost assessed in favour of the respondent but against the appellant at N5,000.00.
Other Citations: (2004)LCN/1653(CA)