Henry Emodi & Ors. V. Orakwue Emodi & Ors. (2006)
LawGlobal-Hub Lead Judgment Report
GALADIMA, J.C.A.
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 lights 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.
The appellants in their brief of argument formulated the following one issue for determination:
“Whether the court can at the instance of the plaintiffs (now respondents) who the court rightly held are not children of the deceased, Nnayelugo Godfrey, Umunna Emodi appoint a receiver of the estate of the said deceased intestate.”
The respondents, who by order of extension of time, filed their brief of argument on 4/10/2005, raised an issue similar to that of the appellants as follows:
“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.”
On 16/1/2006, this appeal was heard. Learned counsel for the appellants, Chief C. C. Ogbo, Esq., adopted their brief of argument without further amplification on the argument on the sole issue and urged us to allow the appeal. The learned counsel for the respondent Chief Ikenna Egbunna, Esq. adopted the brief he filed on behalf of the respondents and also-urged us to dismiss the appeal.
The argument put up by the appellants is that the law relating to the appointment of receivers is that a court cannot appoint a receiver except in aid of an existing right. It is not enough for the applicant to show that there is an issue to be tried. That such an applicant must also elicit a strong prima facie right which deserves protection by the court. Reliance was placed on the cases of Julius Uwakwe & Ors. v. John Agom Odogwu (1989) 5 NWLR (Pt.123) p. 562 and Jannasons Coy Ltd. v. Paul Uzor (1991) 4 NWLR (Pt.183) p.1.
It is the submission of the learned counsel for the respondents that the learned trial Judge rightly exercised his discretion in the appointment of a receiver in this case; more so when the appointee is Administrator-General/Public Trustee of State Government who has no interest in the estate he administers. It is urged that the appeal be dismissed as no material has been brought to the court to warrant it to substitute or set aside the rightful exercise of discretion by the court below.
The application was brought by the respondents praying the lower court, for the appointment of the Administrator-General/Public Trustee or any other fit and proper person, as receiver/manager of the estate of late Nnanyelugo Godfrey Umunna Emodi, pending the healing and determination of the substantive suit. The application was brought pursuant to section 21(1) of the High Court Law and Rules of Anambra State which made elaborate provisions for the appointment of a receiver and the circumstances requiring such appointment.
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.”
(Italics above is mine for emphasis)
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.
Some background facts elicited from affidavit evidence, which weighed heavily in the mind of the learned trial Judge before the appointment of a receiver to manage the estate of the late Nnanyelugo Godfrey Umunna Emodi are summarized hereto. The plaintiffs/respondents are the off-springs of the marriage between Nnanyelugo Godfrey Umunna Emodi who died on 22/12/2002 intestate. The deceased, throughout his life, was a responsible breadwinner of his family, despite the fact that he became estranged with the mother of the respondents a few years before his death.
On the 14th and 15th December, 1993, the deceased performed the traditional rights of “Ichi-ozo”. The 1st and 3rd plaintiffs/respondents as his first son and 1st daughter respectively performed the “Iti-obi” (embrace with initiate) in accordance with Onitsha native law and custom. By this custom, the whole world is being put on notice that despite the material possession of the deceased, he has been blessed with male and female custodians of his estate. When their father died the plaintiffs/respondents participated actively and played all the roles expected of them in accordance with the native law and custom of Onitsha people. Both the Onitsha community and the Agbalanze society to which the deceased belonged accorded the plaintiffs/respondents all their dues. The Agbalanze society handed over to the 1st respondent, the purse they give to dependants of their deceased members. The 2nd defendant/appellant also publicized an obituary poster announcing the death of the deceased in which he listed all the respondents as his children. The disturbing events that followed after the burial of the deceased was that the 2nd and 3rd defendants/appellants without any justification went to the rented house of the deceased at Ogbuzulu Onyachonam’s residence and collected 42 household property including his car which were divested without the consent of the plaintiffs or granting of letters of administration. See paragraph 11 of the affidavit in support of the application at the lower court.
However, the defendants/appellants seek to justify their conduct by the depositions of the 2nd defendant/appellant in his counter-affidavit opposing the application for receivership, in paragraphs 14 and 17 reproduced as follows:
“14. That the deceased intestate who is not the father of the applicants performed traditional rite of Ichi-ozo on 14/12/93 and 15/12/93 and the applicants performed the Iti-obi under a mistaken belief that they were the children of the deceased intestate which mistake was confirmed by the judgment of the court in suit No H.I.H./ID/2000 which judgment was delivered long after the ceremony.
- That paragraph 11 of the affidavit is false. On the death of the deceased intestate he had no wife and children and lived alone and I had to remove the items of property for safe keeping and to hand over his accommodation to his landlord to avoid further payment of rent.”
The judgment relied on by the appellants was a petition for dissolution of marriage brought by one Patricia Chibogwu (nee Okadigbo) which was not controverted by the deceased. It is noted that the plaintiffs/respondents were not parties.
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.
On the whole, this appeal lacks merit and it is hereby dismissed.
I affirm the decision of the lower court to appoint Administrator General/Public Trustee, as a receiver to manage the estate of the late Nnanyelugo Godfrey Umunna Emodi, pending the hearing and determination of the substantive suit. The case is remitted to the Chief Judge of Anambra State for assignment to another Judge to hear and determine the case expeditiously.
There shall be no order for costs.
Other Citations: (2006)LCN/2147(CA)
