Benedict Ojukwu Vs Loiusa Chinyere Ojukwu (2008)

LAWGLOBAL HUB Lead Judgment Report

ADEREMI, J.S.C.

The appeal is against the judgment of the Court of Appeal (Enugu Division) delivered on the 21st of June 2000 wherein that court dismissed with costs the appeal lodged thereto by the present appellant but substituted the order of dismissal made by the trial court (High Court sitting at Nnewi) with an order striking out the suit instead.

Per his statement of claim dated 15th September, 1994 but filed on the 21st September 1994, the plaintiff/appellant claimed against the defendants/respondents as follows:

(1) a declaration that the said late Christopher Ojukwu is not the father of the 2nd defendant.

(2) a declaration that the said late Christopher Ojukwu died leaving only three female issues as between and the 1st defendant .

(3) a declaration that the 2nd defendant is not a member of the Ojukwu family of Okpono Ebenator Uruagu, Nnewi, and cannot inherit therefrom.

(4) an order of injunction restraining the defendant either by themselves, agent or privies from insisting that the 2nd defendant is a member of Ojukwu’s family of Okpono Ebenator, Uruagu, Nnewi and should inherit therefrom.

The plaintiff/appellant thereafter filed a statement of claim while the defendant/respondent brought two application filed on 31st October, 1991 and 22nd March 1996 praying the trial court to hold that the plaintiff had no locus standi to bring the suit, that the statement of claim did not disclose any valid or reasonable cause of action against the defendant and that the suit is frivolous, vexatious and an abuse of court process. The application was supported by a three paragraph affidavit with paragraph 2 thereof divided into four subparagraphs. Arguments for and against the grant of the application were taken by the trial judge. The said application, if I may say, is more of demurrer. In his ruling delivered on the 8th of October, 1997 granting the prayers and dismissing the suit, the learned trial judge said inter alia:

“I have carefully studied the statement of claim filed in this suit. It is not disclosed anywhere the nature of marriage contracted between the.1st defendant and late Christopher Ojukwu. This is a vital omission as the nature of the marriage would have assisted in determining the law applicable to Christopher Ojukwu at death.

The plaintiff does not in his claim state that he is entitled to the property of late Christopher Ojukwu by the custom as, per paragraph 24 of the statement of claim. The plaintiff has not indicated his interest beyond being the head of the family. In other words, has the plaintiff locus standi to prosecute his suit

In my view the plaintiff has no locus standi to bring this action and all the necessary defendants have not been joined.

The demurrer succeeds and this suit is hereby dismissed,”

Dissatisfied with the trial court’s ruling, the plaintiff appealed to the court below (Court of Appeal). The plaintiff/appellant in his statement of claim referred to supra had averred:

Para 3