⦿ CASE SUMMARY OF:
Henry Emodi & Ors. v. Orakwue Emodi & Ors. (2006) – CA
by PipAr
⦿ LITE HOLDING
The appointment of a receiver is discretionary.
⦿AREA OF LAW
Law of Succession (Appointment of a receiver)
⦿ TAG(S)
Receiver;
⦿ PARTIES
APPELLANT
Henry Emodi & Ors.
v.
RESPONDENT
Orakwue Emodi & Ors.
⦿ COURT
Court of Appeal
⦿ LEAD JUDGEMENT DELIVERED BY:
GALADIMA, J.C.A.
⦿ APPEARANCES
* FOR THE APPELLANT
* FOR THE RESPONDENT
AAA
⦿ FACT (as relating to the issues)
This is an interlocutory appeal against the ruling of Uzodike (J) in suit No.A/56/2004. It was in an estate matter in which the respondents had sued as plaintiffs asking for a declaration that the appellants who were sued as defendants have no rights to dabble into the estate of late Nnanyelugo Godfrey Umunna Emodi and a declaration that appellants were “Administrators de son tort.”
They further asked for an order of court commanding the 2nd and 3rd defendants to account to them for their illegal administration from 22nd December, 2002 and order of perpetual injunction restraining the defendants from dabbling into the administration of the estate of the said Nnanyelugo Godfrey Umunna Emodi.
Parties filed and exchanged pleadings. After close of pleadings the plaintiffs through their counsel filed a motion on notice dated 6/4/04 praying the court to appoint the Administrator-General/Public Trustee or any other fit and proper person as a receiver/manager of the estate of the deceased pending the hearing and determination of the substantive suit. The defendants filed a counter-affidavit.
The said motion was argued and on the 20/7/2004 the court below delivered a ruling in favour of the plaintiffs against which the defendants herein, as appellants have appealed.
⦿ ISSUE(S)
1. Whether or not the order appointing the Administrator General/Public Trustee receiver/manager of the Estate of late Nnanyelugo Godfrey Umunna Emodi in the circumstances of this case is rightful.
⦿ RESOLUTION OF ISSUE(S)
[APPEAL: DISMISSED]
1. ISSUE 1 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
RULING:
i. The appointment of a receiver by the court is discretionary and as such there is no hard and fast rule as to whether or not the court will appoint a receiver. I must cautiously decide this matter on its peculiar circumstances. The applicants have amply shown and proved some peril to the property of the deceased. The receiver or manager appointed by the lower court is not in any way an agent or trustee of the party at whose instance the appointment was made. I emphasize once again that the general consideration which the court takes into account when it appoints a receiver or manager is ultimately, invariably the protection or preservation of property for the benefit of persons who have interest in it. The substantial question to be determined in the dispute in the court below is who out of the disputing parties, is entitled to the benefit of the estate of the deceased. At this stage, the lower court is not deciding the case on its merit. The respondents have shown that there is danger to the property in dispute. Therefore, there is the necessity of appointing a receiver. I cannot substitute or set aside the rightful exercise of discretion of the learned trial Judge to appoint a receiver in the circumstances of this case.
⦿ ENDING NOTE BY LEAD JUSTICE – Per
⦿ REFERENCED
⦿ SOME PROVISION(S)
Section 21(1) of the High Court Law provides as follows: “The court may grant an injunction or appoint a receiver by an interlocutory order in all cases in which it appears to the court to be just or convenient to do so.”
Order 17 rule 1 of High Court of Anambra State (Civil Procedure) Rules provides as follows: “In any suit in which it shall be shown to the satisfaction of the court that any property which is in dispute in the suit is in danger of being wasted, damaged, or alienated by any party to the suit, it shall be lawful for the court to issue an injunction to such party, commanding him to refrain from doing the particular act complained of, or to give such order for the purpose of staying and preventing him from wasting, damaging or alienating the property, as the court may seem proper, and in all cases in which it may appear to the court to be necessary for the presentation, or better management or custody of any property which is in dispute in a suit, it shall be lawful for the court to appoint a receiver or manager of such property, and if need be to remove the person in whose possession or custody the property may be from the possession or custody thereof, and to commit the same to the custody of such receiver or manager and to grant to such receiver or manager all such powers for the management or the presentation and improvement of the property, and the collection of the rent, and profits thereof, and the application and disposal of such rents and profits as to the court may seem proper.”
⦿ RELEVANT CASE(S)
AAAA
⦿ CASE(S) RELATED
⦿ NOTABLE DICTA
* PROCEDURAL
* SUBSTANTIVE
The object of appointing a receiver or manager is to safeguard the property in issue for the benefit of those entitled to it. The court will, as a matter of course, appoint a receiver where the property will be in danger if left until the trial in the possession or under the control of the party against whom the receiver is asked for. The court will not appoint a receiver where there is no danger to the property and there is no evidence to show the necessity of appointing a receiver where the right of the applicant is disputed and where the appointment might affect legal rights. – Galadima, JCA. Emodi v. Emodi (2006)
