EKANEM ANSA OKOHO OTUDOR & ORS. v. EKPO ANSA OKOHO OTUDOR & ANOR
(2011)LCN/4529(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 10th day of May, 2011
CA/C/134/2010
RATIO
ORDER OF STRIKING OUT: PROPER ORDER FOR A COURT TO MAKE WHERE IT HOLDS THAT IT HAS NO JURISDICTION TO ENTERTAIN AN ACTION IT
It is needless to say that the learned trial Judge cannot pronounce the Originating Summons incompetent and then proceed to dismiss the suit since the jurisdiction of the court has not been properly invoked. The proper order the court can make in such a circumstance is an order striking out the suit or at best order for the filing of pleadings. There are a plethora of authorities which state that where a court holds that it has no jurisdiction to entertain an action it does not dismiss the action but merely strikes it out. See DIN v A.G, FEDERATION (1986) 1 NWLR (Pt. 170) 471; INAKOJU v ADELEKE (2007) 4 NWLR (Pt. 1025); OJORA v. ODUNSI (1959) 4 FSC 189; AKINBOLA v. PLISON FISKO (NIG.) LTD. (1988) 4 NWLR (PT.88) 335; ONAGORUWA V. INSPECTOR GENERAL OF POLICE (1991) 5 NWLR (PT.193) FISKO (NIG) LTD. (1988) 4 NWLR (Pt. 88) 335; ONAGORUWA v INSPECTOR GENERAL OF POLICE (1991) 5 NWLR (pt.193) 593; UDO V. CROSS-RIVER STATE NEWSPAPER CORP. (2001) 14 NWLR (pt.732) 116. PER KUMAI BAYANG AKAAHS, J.C.A.
LETTER OF ADMINISTRATION: WHETHER A NEW LETTER OF ADMINISTRATION CAN BE VALIDLY ISSUED WHERE THE OLD LETTER OF ADMINISTRATION HAS NOT BE REVOKED BUT ITS HOLDER HAD DIED AND WHETHER A PERSON CAN INHERIT ESTATE THROUGH A LETTER OF ADMINISTRATION
The question posed is whether Exh.’C’ issued on 30th March, 1995 has any legal validity when Exh. ‘A’ issued on 11th February, 1974 is still subsisting. The simple answer is that Exh.’C’ was validly issued because Exh. ‘A’ ceased to be valid upon the death of Mrs. Ako Ansa Otudor on 10th August, 1926. Notwithstanding the fact that the appellant was the only surviving child of the marriage between Ansa Okoho Eyo Otudor and Ako Ansa Otudor, Exh. ‘A’ was neither transferable nor could she inherit it, since it conveys no title in the estate on the administrator. PER KUMAI BAYANG AKAAHS, J.C.A.
ADMINISTRATOR OF ESTATE: WHETHER AN ADMINISTRATOR CAN BENEFIT FROM THE ESTATE HE ADMINISTERS
The administrator administers the estate for the benefit of the beneficiaries not for himself. If he is himself a beneficiary, then he takes as beneficiary not as administrator. see IN RE ODUTOLA (2002) 16 NWLR (pt.794) 470; DUKE v ADMINISTRATOR-GENERAL, CROSS RIVER STATE (2010) 15 NWLR (Pt.1217) 442 at 456. PER KUMAI BAYANG AKAAHS, J.C.A.
JUSTICES
KUMAI BAYANG AKAAHS Justice of The Court of Appeal of Nigeria
MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
Between
EKANEM ANSA OKOHO OTUDOR
Suing by her next friends:
1. FRANCIS BASSEY
2. MADAM INYANG OBONG Appellant(s)
AND
1. EKPO ANSA OKOHO OTUDOR
2. THE PROBATE REGISTRAR Respondent(s)
KUMAI BAYANG AKAAHS, J.C.A.( Delivering the Leading Judgment): The Claimant/Applicant, suing by her next friends took out an Originating Summons against the Defendants/ Respondents jointly and severally seeking a determination of the following questions:-
“1. Whether it was right both procedurally and in substantive law for the Defendants/Respondents to issue and/or obtain another Letters of Administration in 1995 or any other time by the same Probate Division of the Cross River State High Court, when infact the existing Letters of Administration issued by the same court in 1974 was neither revoked nor nullified by an (sic) competent court of law.
2. Whether in view of an existing Letters of Administration issued by a competent court of law to 1974 this court would be right in law to nullify the subsequent Letters of Administration issued over the same property, same having been issued in error.
3. Whether if the subsequent Letter of Administration issued to the 1st Defendant/Respondent over the estate of Ansa Okoho Eyo Otudor automatically abate, pending any order from a competent court”
Consequent on the determination of the questions raised the Claimant sought the following reliefs:
“WHEREOF the claimant claims against the Defendants/Respondents jointly and/or severally as follows:
(i) A determination that the subsequent Letters of Administration issued by the 2nd Defendant/Respondent and obtained by the 1st Defendant/Respondent is invalid, null and void and of no Legal effect.
(ii) A declaration that the Letters of Administration issued by the 2nd Defendant/Respondent in 1974 to Mrs. Ako Ansa Otudor (deceased), the then sole surviving widow of Mr. Ansa Okoho Eyo Otudor is valid and subsisting, same having not been revoked or nullified by any competent court of law.
(iii) An order setting aside the Letters of Administration issued by the 2nd Defendant/Respondent in 1995 to the 1st Defendant/Respondent, same having been issued in error,”
Francis Bassey, the 1st Next of Friend of the Claimant deposed to a 22 paragraph affidavit in support of the Originating Summons and annexed three exhibits.
Upon being served with the Originating Summons, the 1st Defendant/Respondent filed a 13 paragraph Counter-affidavit thereby joining issues with the Claimant. This elicited a further affidavit from the claimant after which learned counsel submitted written address.
In the judgment delivered on 13th April, 2010 the learned trial Judge observed that she was being called to determine whether it was right to obtain a second letter of administration when the first was not revoked which is different from being called to interprete the wordings of an instrument. The learned trial Judge also identified other issues in the dispute which cannot be determined through Originating Summons. She then held that the Originating Summons was incompetent and proceeded to dismiss the suit.
Aggrieved with the decision, the claimant now appellant appealed and submitted the following four issues for determination which the first Respondent adopted:-
1. Whether given the facts and exhibits before the court Originating Summons is appropriate to determine the issues in controversy.
2. Whether the learned trial Judge can validly make a finding suo motu on the issue of 1st Defendant’s paternity when it is not an issue canvassed before the court.
3. Whether the learned trial Judge is correct in law to dismiss the suit after making a finding for evidential proof.
4. Whether given the weight of evidence before the court the Appellate court can validly interfere and grant the reliefs sought at the lower court, of the four issues formulated, the issue that is central to this appeal is issue No. 1. The other issues are peripheral. It is needless to say that the learned trial Judge cannot pronounce the Originating Summons incompetent and then proceed to dismiss the suit since the jurisdiction of the court has not been properly invoked.
The proper order the court can make in such a circumstance is an order striking out the suit or at best order for the filing of pleadings. There are a plethora of authorities which state that where a court holds that it has no jurisdiction to entertain an action it does not dismiss the action but merely strikes it out. See DIN v A.G, FEDERATION (1986) 1 NWLR (Pt. 170) 471; INAKOJU v ADELEKE (2007) 4 NWLR (Pt. 1025); OJORA v. ODUNSI (1959) 4 FSC 189; AKINBOLA v. PLISON FISKO (NIG.) LTD. (1988) 4 NWLR (PT.88) 335; ONAGORUWA V. INSPECTOR GENERAL OF POLICE (1991) 5 NWLR (PT.193) FISKO (NIG) LTD. (1988) 4 NWLR (Pt. 88) 335; ONAGORUWA v INSPECTOR GENERAL OF POLICE (1991) 5 NWLR (pt.193) 593; UDO V. CROSS-RIVER STATE NEWSPAPER CORP. (2001) 14 NWLR (pt.732) 116.
I do not think that a pronouncement on the validity of Exhs. ‘A’ and ‘C’ attached to the Originating Summons would prejudice a consideration of the paternity of any of the children of late Ansa Okoho Otudor who are entailed to benefit from his estate.
I agree with the submission of learned counsel for the appellant that since Exhs. ‘A’ and ‘C’ attached to the Originating Summons were duly issued by the 2nd respondent and it is their validity which the appellant sought to establish, the Originating Summons procedure as provided in Order 7 Rule 5 of the High Court (Civil Procedure) Rules, Cross River State 2008 is the appropriate procedure to adopt, The said order 7 Rule 5 provides as follows:
“Any person claiming to be interested under a Deed, Will, Enactment or any other written instrument may apply by originating summons for the determination of any question of construction arising under the instrument and for a declaration of the rights of the persons interested.
The questions posed in the Originating Summons if answered by the court will interpret the documents.
Although the learned trial Judge declined to answer the questions, since no evidence is required to be led and the evidence assessed as to its probative value this court is equally in a good position to answer the questions.
In paragraphs 7, 8, 9, 15 and 16 of the affidavit in support of the Originating Summons, Mr. Francis Bassey, who is the 1st next friend of Ekanem Ansa Otudor deposed to the following facts:
“7. That when Mr. Ansa Okoho Eyo died interested in 1971, he left behind a large estate comprising plot of oil palm and rubber estate, as well as real and personal properties,
8. That following the death of her husband Mr. Ansa Okoho Eyo Otudor in 1971 the said Mrs. Ako Ansa Otudor (now deceased), precisely on 11th day of February, 1974 obtained Letters of Administration to administer the estate. A copy of the said Letters of Administration is hereto attached and marked Exh. “A”.
9. The estate of the deceased Ansa Okoho Eyo Otudor, following the grant of the Letter of Adminstration above was duly administered by the said Mrs Ako Ansa Otudor until her own demise on the 10th of August, 1976 leaving the claimant as the sole and only surviving child of the marriage.
15. That the said 1st Defendant/Respondent precisely on the 30th day of March, 1995 procured another Letters of Administration on the personal/real property of the estate of the late Ansa Okoho Eyo Otudor without the knowledge of the deceased larger family, A copy of the certified true copy is hereto attached and marked Exh. ‘C’.
16. That at the time the Letter of Administration in paragraph 15 above was obtained by the 1st Defendant/Respondent, the earlier Letter of Administration granted to the late widow of the deceased Ansa Okoho Eyo Otudor was still subsisting and was neither revoked at all material times nor nullified by any competent court of law.”
The question posed is whether Exh.’C’ issued on 30th March, 1995 has any legal validity when Exh. ‘A’ issued on 11th February, 1974 is still subsisting. The simple answer is that Exh.’C’ was validly issued because Exh. ‘A’ ceased to be valid upon the death of Mrs. Ako Ansa Otudor on 10th August, 1926.
Notwithstanding the fact that the appellant was the only surviving child of the marriage between Ansa Okoho Eyo Otudor and Ako Ansa Otudor, Exh. ‘A’ was neither transferable nor could she inherit it, since it conveys no title in the estate on the administrator. The administrator administers the estate for the benefit of the beneficiaries not for himself. If he is himself a beneficiary, then he takes as beneficiary not as administrator. see IN RE ODUTOLA (2002) 16 NWLR (pt.794) 470; DUKE v ADMINISTRATOR-GENERAL, CROSS RIVER STATE (2010) 15 NWLR (Pt.1217) 442 at 456.
The questions posed in the Originating Summons which the learned trial Judge failed to resolve are hereby answered as follows:
1. That the 1st Defendant/Respondent was right to obtain Letters of Administration in 1995 when the existing Letters of Administration issued in 1974 was neither revoked nor nullified by a competent court of Law.
2. That the Letters of Administration issued in 1974 ceased to have any legal effect upon the death of Mrs. Ako Ansa Otudor on 10th August, 1976.
3. That the Administrator had no title to pass on the estate and the Claimant/Appellant could not inherit the estate by virtue of the Letters of Administration issued to Mrs. Ako Ansa Otudor on 11th February, 1974.
The appeal succeeds to the extent that the Originating Summons procedure was rightly invoked to pronounce on the validity of Exh. ‘C’ the Letters of Administration issued to the 1st Defendant/Respondent on 30th March, 1995.
I make no order on costs.
MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I have had the privilege of reading in draft, the lead judgment just delivered by my learned brother, Kumai Bayang Akaahs, JCA. I am in full agreement with him on his reasoning and conslusion reached therein. Indeed, he has in an elucidating manner covered the issues canvassed in this appeal. I do not intend to add anything thereto. I also adopt the lead judgment as mine. In the premise, I also find merit in the appeal which succeeds to a certain extent. I also abide by all the consequential orders made in the said lead judgment, inclusive of the order on costs.
ISAIAH OLUFEMI AKEJU, J.C.A.: I read before now the draft of the lead judgment of my learned brother, Kumai Bayang Akaahs, JCA just delivered, and I am in full agreement with the reasoning therein and the conclusion that the appeal has merit and it succeeds.
I make no order as to costs.
Appearances
Ifeanyi Udenze with Dan Edet and Isaac OjopaFor Appellant
AND
F. O. Onyebueke for 1st Respondent
2nd Respondent absent and not represented.For Respondent
