Mr. Emmanuel Moses V. Madam Agnes Nlerunwo Eruwa & Ors (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHIOMA EGONDU NWOSU-IHEME , J.C.A.: (Delivering The Leading Judgment)

The Appellant here was the Claimant while the Respondents were the defendants in an Originating Summons proceedings in Suit No. PHC/337/2006 in the Port Harcourt Division of the High Court of Rivers State.

By the said originating Summons filed on the 4th of April, 2006, the Appellant sought for the interpretation and construction of the Judgment in Suit No. PHC/153/90 delivered by Daniel-Kalio J, (as he then was) on the 8th of March, 2001. On interpreting the said judgment, the Appellant (claimant therein) seeks the following reliefs:

“1. Whether the Claimant herein is the person entitled to succeed to his late father’s position as the head of Eruwa family, being the eldest and only surviving male child of his said father and the only surviving legitimate son of the Eruwa lineage?

2. If question No.1 is answered in the affirmative, whether the Claimant as head of Eruwa family is the person entitled to the custody and management of Eruwa family land including the residence and Obi/Obiri of his late father Alfred Wogunka Eruwa which he built on his mother’s Akaogba.
3. Whether the Claimant is the person entitled to the inheritance of the portion of land and “Akaogba” built for his grandmother, which said Akaogba is presently occupied by the Defendant and her children and the children of the 2nd wife Isaac Eruwa.

Or

Whether the claimant is entitled, in view of the holding at page 18 of the judgment to the land/house partitioned and/or built for his grandmother by his polygamous grandfather.

4. If questions 1, 2 and 3 above are answered in the affirmative, then a declaration that as the eldest and only surviving son of his father and the only legitimate son of Eruwa, the claimant is the person entitled to the headship of Eruwa family and as such, further entitled to the custody and management of Eruwa family land, including the place of residence and Obi/Obiri of his late father together with the portion of land and Akaogba built for his late grandmother by his late grandfather.
5. And an order of injunction restraining the Defendants jointly and/or severally from their continued trespass on the Claimant’s father’s Obi/Obiri together with the adjoining land thereto, and on the Claimant’s grandmother’s Akaogba and its adjoining land”.

Accompanying the originating summons was an affidavit of 20 paragraphs setting out the facts relied upon.

The Respondents (Defendants at the lower court) filed a 20 paragraph joint counter affidavit in opposition to the originating summons.

A Summary of the case presented by the Appellant in the court below was that he was the eldest and only surviving son of late Mr. Alfred Wogunka Eruwa and the only surviving legitimate son of the Eruwa lineage. The said Mr. Alfred Wogunka Eruwa took out an action in PHC/153/90 in the High Court of Rivers state against the 1st – 3rd Defendants (Respondents) wherein certain declarations were made in his favour. It is that Judgment that the Appellant herein asked the court below to interpret, construct and grant the reliefs claimed.

The Respondents case in the court below was that the issues raised in the originating summons are not the same as the issues decided in PHC/153/90 and the parties are not the same. Consequent upon that, the Respondents contended that the questions and declarations sought cannot be determined by the interpretation and construction of Suit No.PHC/15/90 and that there was need to call oral evidence.

In a considered Ruling delivered on the 12/1/2007, the learned trial Judge held that this was not a proper action to be commenced by originating summons but by writ of summons and directed both parties to proceed with the filing of pleadings. Aggrieved by that Ruling, the Appellant had brought this appeal vide a Notice and Grounds of Appeal dated and filed on 8/2/2007.

Learned Counsel for the Appellant E. G. Iwediba Esq. distilled three issues for determination:

7. Whether in the circumstances of this case, oral evidence is in fact required to interprete and /or place construction on the Judgment of the High Court of Rivers State in suit No.PHC/153/90?
8. Whether question number one (No.7) in the Originating summons is one capable of being answered affirmatively, in view of the findings by Hon. Justice Daniel-Kalio in Suit No. PHC/153/90 (at page 36 of the Records); together with the depositions in paragraph 73 of the claimant’s Affidavit in support of the originating; summons and paragraph 72 of the Defendants’ Affidavit in opposition?
9. Whether answers (in the affirmative) to questions raised in on Originating summons automatically entitles the claimant to the relief claimed?

The Respondents did not file Respondents brief. On the 22/1/2013 when this appeal came up for hearing, even though Counsel for the Respondents F. C. Ikehi was in Court, he did not file Respondents’ brief and in an application dated and filed on the 7th of June 2011 which was granted on 13/3/2012, Counsel for the Appellant sought leave of court to argue the substantive appeal on the Appellant’s brief alone. This application was served on the Respondents’ Counsel through one Tunde a Lawyer in his Chambers. The court Ruled that it was satisfied that the Respondents were served with the said application and therefore proceeded to hear the appeal on the Appellant’s brief alone.

The issues raised by Counsel for the Appellant can conveniently be compressed into one straight forward issue of narrow compass. It is: