Chief Eyo Edem Nsefik (Since Dead) & Ors V. Rosemary Muna & Ors (2013)

LAWGLOBAL HUB Lead Judgment Report

MAHMUD MOHAMMED, J.S.C.

The dispute between the parties in this appeal concerns the Administration of the estate of the late Mrs. Teresa Ekpenyong Nsefik (Nee Ekpenyong Eyo) of No. 18, St. Gregory Road, Eko Ekete Close, South West Ikoyi, Lagos, Lagos State who died on 12th March, 1989 leaving behind her Will dated 6th July, 1988. Upon the death of the deceased, the 2nd and 3rd Respondents in this appeal John Effion Asuquo and William Ene-Eyo Asuquo applied for and were granted probate of the Will of the deceased dated 6th July, 1988 after duly satisfying the necessary conditions for the grant. The grant was made under the High Court of Lagos State’s seal and duly signed by the Probate Registrar. There was no caveat entered by any person before the grant of Probate on the Will.

However, the Plaintiffs now Appellants who did not take any steps against the application by the Defendants now Respondents for the grant of probate, brought their action at the trial High Court of Lagos State after the grant of probate by a Writ of Summons dated and filed on 15th November, 1989 and claimed thus –

“The Plaintiffs claim is as the lawful husband and one of the persons entitled in the event of an intestacy to share in the estate of Mrs. Teresa Ekpenyong Nsefik (Nee Ekpenyong Eyo) late of 18, St. Gregory Road, Eko Akete Close, South West Ikoyi Lagos, Lagos State who died on 12th March, 1989 to have probate of a pretended Will of the deceased dated 6th July 1988 granted on 24th October, 1989 revoked and the said Will propounded against and to have a grant of letters of administration of the estate of the said deceased.”

In their amended statement of claim, the Appellants/Plaintiffs claimed the following reliefs namely –

“(a) That the Court shall revoke the said grant of probate and pronounce against the force and validity of the said alleged Will; and

(b) Declaration that the said deceased died intestate.”

The Defendants now Respondents in this appeal on being served with the processes of the trial Court, reacted by filing their statement of Defence and counter-claim dated 26th June, 2000. In the statement of Defence at paragraph 18 thereof, the Defendants averred –

“18. The Defendants will further contend at the hearing of this action that the Plaintiffs claim apart from being ill-motivated, is frivolous, misconceived, speculative and ill-advised and should be dismissed.”

At the conclusion of their four paragraph counter-claim, the Defendants claimed –

“(1) That the court shall pronounce in solemn form for the true last Will of the deceased dated 6th July, 1988 and propounded by the 2nd and 3rd Defendants.

(2) For the alternative that the Court do pronounce in solemn form of law for one of the said prior Wills.”

After the exchange of pleadings, the case eventually went to trial at the High Court of Lagos. However, before the hearing could commence, the learned trial Judge died and the case was transferred to another Judge of the same Court for hearing. On the date the case came up for hearing, an issue arose as to which of the parties were to start calling evidence. The learned Counsel to the Plaintiffs/Appellants who raised the issue, contended that the Defendants/Respondents were the party to start while the learned Counsel to the Defendants/Respondents asserted that the Plaintiffs/Appellants were the party to start. The learned trial Judge after hearing the learned Counsel to the parties on this issue, in the Ruling delivered by him on 26th February, 2001, he came to the conclusion thus –

“In the light of all that I have been saying, it is hereby ordered that the Plaintiffs shall lead evidence in proof of their case on dates to be fixed for trial. The Plaintiffs shall call evidence first.”