Mrs. Bridget Motoh & Anor V. Emmanuel Motoh (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ABDU ABOKI, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the decision of Umegbolu Nri-Ezedi J. of the High court of Anambra State sitting at Awka, delivered on 18th July, 2005.

The Respondent was the plaintiff at the lower court while the Appellants were substituted for the original defendant.

The dispute before the lower court relates to the estate of late Jeremiah Anagor Motoh who died intestate.

The brief facts of the case are as follows:-

The plaintiff claimed before the lower court that his mother Gloria Mgbogafor Motoh was married to Jeremiah Anagor Motoh as his second wife. The first wife was Mercy Nwojini Motoh (or Nwojinika or Ojinika), and had 6 daughters for the late Jeremiah Anagor Motoh. It was alleged that she had no male issue. The plaintiff’s mother claimed that she has two children, the plaintiff and his sister Joy who survived the late Jeremiah Angor Motoh who died in 1962. The plaintiff alleged that he and his mother were excluded from the estate of Jeremiah Anagor Motoh who died intestate. The plaintiff alleged that since Mercy Nwojini’s death the defendants have driven him and his mother out of his father’s Obu or compound at Awka.

Mercy Nwojini Motoh, the defendants, claimed before the lower court that she was the only wife lawfully married to Jeremiah Anagor Motoh and that they wedded at St. Faith’s Cathedral Church Awka. Gloria Mgbogafor Motoh was said to have lived with Mercy Nwojini Motoh and Jeremiah Anagor Motoh as a maid. When she became pregnant, she was driven away.

Mercy Nwojini Motoh had six daughters and two sons for Jeremiah Anagor Motoh. The names of the two sons were Chukwuemeka and Nwankwo. Jeremiah Anagor Motoh died in 1962 and was survived by Chukwuemeka.

During the Nigerian Civil War, Chukwuemeka married the first defendant at Okoh town and they had their first child, the second defendant, at Okoh. Chukwuemeka was conscripted into the army during the civil war and never returned home. The second defendant, her son and Mercy Nwojini Motoh her mother in law came back to Awka after the civil war and lived at No. 76 Enugu Road Awka now known as No. 82 Nnamdi Azikiwe Avenue Awka the compound of Jeremiah Anagor Motoh. The first defendant had other children who have all been living at No. 82 Nnamdi Azikiwe Avenue Awka since then.

Mercy Nwojini Motoh and Sylvanus, a brother to Jeremiah Anagor Motoh applied for and obtained Letters of Administration in respect of the estate of Jeremiah Anagor Motoh. Mercy Nwojini Motoh who died in 1992 made a Will.

The plaintiff claimed that when Jeremiah Anagor Motoh’s house at No. 3 Pampam Lane, Onitsha also called Ogbe Hausa (or Ogbe Awusa) was given out on lease after the death of Jeremiah Anagor Motoh, the money realized was shared between Mercy Nwojini Motoh and Gloria Mgbogafor Motoh his mother. This was as a result of pressures mounted on Mercy Nwojini Motoh that Gloria Mgbogafpr should be rewarded for her services to the family. Mercy Nwojini granted a room in the house at No. 3 Pam Pam Lane Onitsha to the plaintiff s mother to live in.

The defendant denied participating in a customary court case and in a customary arbitrations.

The Plaintiff commenced the action at the lower court by a writ of summons dated 16/11/88 and filed the same date. While the statement of claim dated 6/01/89 was filed on 13/01/89. The plaintiff who is now the respondent before this court claimed against the defendant as follows:-

‘a. A declaration that the plaintiff is the Okpala and indeed the only male issue of the late Jeremiah Anagor Motoh and as such entitled to hold and manage the property of the late Jeremiah Anagor Motoh according to the custom of Umuanaga village Awka.