Mrs. Ethel C. Chukwu & Ors V. Hon. Lolo Stella C. Chukwu & Ors (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

IGNATIUS IGWE AGUBE, J.C.A. (Delivering the Leading Judgment)

In the High Court of Imo State, in the Etiti/Isiala Mbano Judicial Division Holden at Mbano, the Respondents as Plaintiffs took out a writ of Summons dated and filed the 2nd day of May, 2003 where of they claimed as per the Endorsement therein as follows:-

“1. A DECLARATION that the Plaintiffs being wife and sons of Chief L.A. S. Chukwu of Umudike Eziama Osu Mbano within the Jurisdiction of this Honourable Court are entitled under the Law to participate in all domestic and family meetings, arrangements and ceremonies regarding his burial and funeral.

“2. PERPETUAL INJUNCTION restraining the Defendants by themselves, privies, agents and servants etc from seeking to conduct, conducting, organizing, planning or carrying out the burial and funeral rites of Chief L. A. S. Chukwu on 9th and 10th days of May, 2003 without the participation of the Plaintiffs.

“3. PERPETUAL INJUNCTION restraining the Defendants by themselves, agents, privies, servant and assigns, appropriating, tampering or howsoever dealing with the fixed assets and other properties of late

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Chief L.A.S. Chukwu of Umudike Eziama Osuama Isiala Mbano Local Government or denying Plaintiffs legal right to his estate as inheritors and successors-in-title.”

Accompanying the Writ of Summons were an Authority to Sue As Next Friend pursuant to Order 11 Rules 10 and 13 of the Imo State High Court (Civil Procedure) Rules, 1988, obtained with the purported full consent and authorities of Wereuche Faith Chukwu and Chinagorom Chukwu who were then aged 14 and 12 years respectively and a Motion Exparte for Orders of interim injunction restraining the Defendants from carrying out the acts for which the perpetual injunctions were sought in the main claim and for such further order(s) as the Honourable Court would deem fit to make in the circumstances of the case.

In support of the Ex-parte Motion was a thirty-One Paragraphed Affidavit deposed to by the 1st Plaintiff (now Respondent) Hon. Lolo Stella C. Chukwu and annexed to the supporting Affidavit were documents marked Exhibits ‘A’, ‘B’, ‘C’, ‘C1’, ‘D’ and ‘D1’ respectively; a motion on notice dated 7th day of June, 2001 together with a supporting Affidavit marked Exhibit ‘E’, deposed to by

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the said 1st plaintiff/Respondent; a Counter-Affidavit by Chief Lawrence Amaechi Sunday Chukwu to the aforesaid Affidavit in Support of the motion on Notice was also annexed as Exhibit E1′, and the Further Counter-Affidavit of the said Chief Lawrence Amaechi Sunday Chukwu was further annexed and marked Exhibit ‘E2’. The last document annexed to the motion Exparte was Coroners Ordinance Form D (REPORT OF MEDICAL PRACTITIONER) dated the 2nd day of April, 2003 issued by one DR. A. I. Ezimefula B.SC, MB, BS the Medical Officer of a Hospital situate at Ahiazu Mbaise, in respect of Chief Lawrence Chukwu.

From what transpired on the 6th day of May, 2003, at pages 117 to 118 of the Records, the Plaintiffs were in Court except the 3rd who was absent along with all the Defendants. C. C. Ulu Esq for the Plaintiffs/Applicants intended to move the Exparte Motion but the Court hinted the said Learned Counsel for the Plaintiffs/Applicants that: “This Court does not grant Ex-parte Application of this nature.”

C. C. Ulu Esq then orally intimated the Court that:

“The Bailiff of this Honourable Court told me and I verily believe him that he