Nneka Agbu & Ors. V. Gladys Agbu & Anor. (2006)

LawGlobal-Hub Lead Judgment Report

JA’AFARU MIKA’ILU, J.C.A.

In this case the plaintiff, now respondent, by way of a writ of summons dated 7th day of February, 2002 sued the defendants, now the appellants before the Onitsha High Court, Onitsha seeking for the following:-

(1) A declaration that the last and Testament of Akunnia Paul Nwachukwu Agbu (otherwise known as Testator) dated 2nd July, 1984 proved in common form of law on or about 4th February, 1986 by the plaintiff and the defendants herein is valid and or effectual as regards the testamentary disposition contained therein.

(2) An order that the estate left by the Testator by the operation of clause 49 and 7 of his Will be partitioned and distributed to the beneficiaries to the Will;

(3) An order removing the 1st defendant as the Executor and Trustee of the estate and appointing judicial trustees (administrator general) to partition the Estate.

(4) An order for account of all sums of money and or property comprised in the estate left by the Testator received by the defendant either by themselves and/or through their agents, servants or attorneys belonging to the plaintiff by virtue of the dispositions contained in the Will of the Testator.

(5) A order for payment over and/or distribution to the plaintiff of all sums of money and/or property aforesaid found due to her upon taking of such accounts.

The 2nd -7th defendants/Appellants filed and served their statement of Defence in response.

Before the hearing commenced, the plaintiff/Respondent filed a motion on notice on 3rd February 2003 praying for:-

(1) An order appointing Mr. C. N. Ezebilo the Assistant Chief Registrar of this court and or any other person subsequently appointed to take over from him a receiver to collect rents and profits in the premises situate at No. 82A Upper Iweka Road, Onitsha and to share same to all the beneficiaries to the last Will and Testament of Akunnia Paul Nwachukwu Agbu in accordance to the determination of the substantive suit.

(2) And for such further order or orders as this honorable court may deem fit to make in the circumstances.

The said motion was supported by 13 paragraph-affidavit. The 2nd – 7th Defendants filed a counter-affidavit opposing the motion. When the motion came up for the mention on 27th May 2003 both parties were represented by counsel in court and the case was adjourned for hearing of the motion 15th July 2003. On 15th July 2003 when the case came up for hearing the motion, the 2nd-7th defendants and their counsel were not in court. The trial court allowed the plaintiff/Respondent through her counsel to move the motion and thereafter the court adjourned the case to 31st July 2003 for Ruling on the motion. However the ruling was not delivered on 31st July, 2003 as the court did not sit. Later before the ruling was delivered the 2nd – 7th defendants applied to the court through a motion on notice dated 30th September 2003 and filed on 9th October, 2003 and served the respondents asking the trial court for:-

(1) An order waiving all procedural rules by hearing this application at the earliest possible time (accelerated hearing)

(2) An order staying further proceedings including ruling on the motion moved by the plaintiff in this suit pending the determination of prayer 3 below.