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Kaine v. Ojukwu

HON. JUSTICE H. U. KAINE (RTD)

AKINTOLA WILLIAMS

F. E. OKONKWO

V

DR. J. O. OJUKWU

CHIEF C. O. ODUMEGWU OJUKWU

L. P. OJUKWU

COURT OF APPEAL

( ENUGU DIVISION )

EUGENE CHUKWUEMEKA UBAEZONU, JCA ( Presided )

SULE AREMU OLAGUNJU, JCA

MUSA DATTIJO MUHAMMAD, JCA ( Read the Lead Judgment )

CA/E/76/96

WEDNESDAY, 12TH JULY, 2000.

APPEAL - Commencement of appeal - Need to comply with law -  Failure to comply therewith - Effect

APPEAL - Ground of appeal - Classification as one of fact, law or mixed law and fact - How determined - What constitutes

APPEAL - Grounds of appeal - Grounds questioning court’s conclusion of disputed facts - Whether a ground of law

APPEAL - Interlocutory appeal - Where not based on ground of law alone -  Failure to obtain leave of court - Effect

APPEAL - Right of appeal - Where derived - Duty of appellant to comply with the law -

 JUDGMENT AND ORDER - Interlocutory decision - Nature of

Issues:

Whether a ground of appeal which questions the trial court’s conclusion drawn from facts is a ground of law, of which no leave of court is required.

Facts:

The respondents in the court below were the plaintiffs who were appointed Executors/Trustees of the Will of late Sir Phillip Ojukwu, who died on 13th September, 1966.  However, at the expiry of the civil war, the Will could not be found - for it was either lost or had become unavailable. All efforts to secure the Will was to no avail.  There was later an agreement to reconstruct the Will and have it admitted to probate.  Before the attainment of this agreed position, the appellant and 1st respondent applied for and obtained letters of administration to the estate of the late Sir Ojukwu.  Hence, the respondents commenced action against the defendants, claiming inter alia:

  1. a revocation of the grant of letters of administration granted to the 1st and 2nd defendants and the same delivered up to probate registry for cancellation.
  2. an order that the last Will of Sir Odumegwu Ojukwu, which was lost, be reconstructed and admitted to probate.
  3. an order that the plaintiffs/respondents with the 1st defendant/ respondent be granted probate of the reconstructed Will.

The trial of the case commenced with only the 1st respondent testifying and tendering Exhibits E and F.  Other parties to the suit were absent.  The case, however, suffered several adjournments before it was finally adjourned to 14/7/95 for judgment.

However, by a motion dated 21/6/95 but filed on 23 /6/95, the appellant prayed the court to set aside the proceedings of the court up till 2/ 6 /95 and allowing him to re-open the case by cross-examining certain witnesses.

The trial court granted the prayer for the appellant to lead evidence on the statement of defence and the counter-claim filed in the court.  But it did not grant other prayers. The appellant, dissatisfied with the ruling of the lower court, consequently appealed to the Court of Appeal.