⦿ CASE SUMMARY OF:
Michael Egbuziem v. Ambassador R. I. Egbuziem (2004) – CA
by PipAr
⦿ LITE HOLDING
No doubt, demurrer proceedings have been abolished in Civil Procedure. However, a point of law which would determine a bad issue which is timeously taken puts an essential early end to a bad case which ultimate end would be a dismal failure.
⦿AREA OF LAW
Law of Succession ()
⦿ TAG(S)
Probate.
Demurrer.
⦿ PARTIES
APPELLANT
Michael Egbuziem
v.
RESPONDENT
Ambassador R. I. Egbuziem
⦿ CITATION
(2004) JELR 47815 (CA)
⦿ COURT
Court of Appeal
⦿ LEAD JUDGEMENT DELIVERED BY:
ADEREMI, J.C.A.
⦿ APPEARANCES
* FOR THE APPELLANT
– Mr Chukuka.
* FOR THE RESPONDENT
– Mr Michael Egbuziem
AAA
⦿ FACT (as relating to the issues)
This is an appeal against the ruling delivered by the High Court of Imo State sitting at Isiala Mbano in Mbano/Etiti Judicial Division in Suit No. HME/16/98 on the 27th April 1999.
In the court below, the respondent who was the plaintiff in that court had, on behalf of himself and members of the family of the late Chief Joseph Ugoanyanwu Egbuziem, claimed against the appellant who was the defendant in that court the following reliefs:
(1) Order nullifying the purported WILL of late Chief Joseph Ugoanyanwu Egbuziem of Ogbor Autonomous Community of Isiala Mbano within jurisdiction allegedly made on 1st March 1994 for being contrary to the Administration (Real Estate) Law of Eastern Nigeria applicable.
(2) Alternatively; An order for the defendant to prove or authenticate the purported WILL of late Chief Joseph U. Egbuziem.
(3) An order restraining the defendant by himself, servants, agents, privies or otherwise from further interference with the estate of late Chief Joseph U. Egbuziem without the consent of the named plaintiff; the family head.
(4) N100,000.00 being damages for the defendant’s unauthorized interference and usurpation of the estate of late Chief Joseph Ugoanyanwu Egbuziem relying on the said illegal WILL since April 1995.
The plaintiff/respondent thereafter filed his statement of claim dated 6th January 1999 but filed on 7th January 1999. Sequel to the service of the statement of claim, the defendant/appellant filed a motion on the 20th of January 1999 praying the court below to strike out the suit on the grounds of lack of jurisdiction and for being an abuse of court process.
The court after hearing the motion filed by the defendant dismissed the motion. Because of that, the defendant has appealed to this Court.
⦿ ISSUE(S)
1. Whether this suit as filed by the plaintiff/respondent is not a probate matter and therefore subject to the provisions contained in order 49 rule 1(1) and of the High Court (Civil Procedure) Rules 1988?
2. Whether it was premature to raise the issue of jurisdiction at the time of filing of the motion on notice challenging the jurisdiction of the lower court without the filing of a statement of defence by the defendant/appellant?
⦿ RESOLUTION OF ISSUE(S)
[APPEAL: DISMISSED]
1. ISSUE 1 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
RULING:
i. … upon the death of a person any petition for the grant of Letters of Administration of the estate of that deceased person shall be made to the Probate Registrar. It is upon the occurrence what is contained in rule 1(1) that rule 1(2) will come into play. But the plaintiff/respondent has not prayed for the grant of letters of administration of the estate of late Chief Joseph Ugoanyanwu Egbuziem and by no strained construction can such a relief be read into the four legs of reliefs claimed before the court below. A careful reading of the reliefs sought by the plaintiff/respondent are for the nullification of the WILL of late Chief Joseph Ugoanyanwu Egbuziem made on the 1st of March 1994, in the alternative, an order on the defendant/appellant to authenticate the said WILL, an order restraining the defendant/appellant and his agents from further interference with the estate of the deceased without the consent of the plaintiff/respondent. The last relief is for N100,000.00 damages against the defendant for the unauthorized interference. A challenge to the validity of a WILL is a valid cause of action. The ONUS PROBANDI of it rests squarely on the proponents of the WILL to establish its validity and its due execution. See 1) Adebajo v. Adebajo (1971) 2 All NLR 276, (2) Johnson and Anor v. Maja and Ors 13 WACA 290 and (3) Amu v. Amu (2000) 7 NWLR (Pt.663) 164. The suit does not therefore come within the ambit of order 49 rule 1(1) (2) of the High Court (Civil Procedure Rules) 1988. Issue No.1 is consequently answered in the negative.
2. ISSUE 2 WAS RESOLVED IN THE NEGATIVE.
RULING:
i. It poses the question whether it was premature to raise the issue of jurisdiction at the time of filing of the motion challenging the jurisdiction of the court without the defendant filing his statement of defence. True it is that DEMURRER has been abolished under the various rules of court however there are provisions in lieu of demurrer. Where a defendant perceives a point of law of which he is convinced will put an end to a case he is at liberty to raise it in limine urging the court to strike out or dismiss the action without his filing a defence nor calling any evidence. Of course at that stage the defendant is presumed to have admitted the averments in the plaintiff’ statement of claim. The rationale for the proceedings in lieu of demurrer is to save valuable time and money. By this procedure, the defendant having admitted the facts pleaded is saying no more than that the facts do not give rise to a cause of action.
⦿ ENDING NOTE BY LEAD JUSTICE – Per
⦿ REFERENCED
⦿ SOME PROVISION(S)
Order 49 rule 1(1) and (2) of the High Court (Civil Procedure) Rules 1988 under which the application was brought provides:
1(1) Subject to the provisions of rules 39 and 40, when any person subject to the jurisdiction of the court dies, all petitions for the granting of any letters of administration of the estate of the deceased person, with or without a WILL attached, and all applications on other matters connected therewith shall be made to the probate registrar of the court at Owerri.
1(2) In regard to any such application, the Chief Judge shall have power to request the court of any judicial division as may appear necessary or expedient for the interim preservation of the property of the deceased within such judicial division, for the discovery or preservation of the WILL of the deceased or for any other purposes connected with duties of the court under this order, and every court shall carry out any such request as far as practicable and report to the Chief Judge.
⦿ RELEVANT CASE(S)
AAAA
⦿ CASE(S) RELATED
⦿ NOTABLE DICTA
* PROCEDURAL
* SUBSTANTIVE
I shall start the consideration of this appeal by saying that I am in full agreement with the submission of the appellant and the respondent that in the determination of whether the court has jurisdiction to entertain a suit or not the fundamental principle of law is that it is only the claim of the plaintiff that a court must have a resort to. In other words, the jurisdiction of a court is determined by the suit of the plaintiff before it. – Aderemi, JCA. Egbuziem v. Egbuziem (2004)
A challenge to the validity of a WILL is a valid cause of action. The ONUS PROBANDI of it rests squarely on the proponents of the WILL to establish its validity and its due execution. – Aderemi, JCA. Egbuziem v. Egbuziem (2004)
