CORAM

PARTIES

1.    AUGUSTINE JOSEPH2.    JOSHUA JOSEPH                3.    JOSPHINE JOSEPH? APPELLANTS

1.    JONAH JOSEPH                2.    SAMAILA JOSEPH? RESPONDENTS

AREA(S) OF LAW

SUMMARY OF FACTS

The deceased (the father of both the Appellants and Respondents) by different mothers died leaving behind an estate, wives and the children. During his lifetime he had three wives. The first being married to him to customary law with a child before their separation, the second was done in the church and blessed with four children out of which two died leaving behind a male and a female. The Couples later on separated. The third wife who lived with him up to his time of death also had seven children with him. After his death, the second wife brought an action against the third wife seeking for division of the estate.  As Investigation revealed that the 2nd wife was divorced by the deceased and had married another person, her name was struck out for lack of locus standi. Her two children were replaced by her. The 1st Respondent (son of the second wife) also instituted an action against the 3rd wife seeking for his own share of the property. The two suits were subsequently consolidated. At the trial of the case there was dispute as to the items left by the deceased. The trial Court adjourned for the Plaintiffs to call evidence to ascertain the estate left by the deceased but no further evidence was adduce by them. The Defendant did not adduce any evidence in defence of the claim after several adjournments had been granted at his instance. At the close of trial, the trial judge listed the entire item as seen to be part of the deceased estate and divided it amongst his heirs. Aggrieved with that, the Defendant at the Upper Area Court appealed to the Gombe state High Court. During the pendency of the appeal, the said Appellant died and was substituted upon an application with the present Appellant. After hearing the parties, the Court affirmed the decision of the Upper Area Court. Further dissatisfied, the Appellant has appealed to this Court. The Respondent filed a Notice of Preliminary Objection challenging the competence of the appeal on the basis that the grounds of appeal and issues for determination are incompetent.

HELD

Preliminary Objection Dismissed, Appeal Dismissed

ISSUES

?    Whether the Respondents (as Plaintiffs before the trial Upper Area Court Billiri), proved their case in respect of the estate left by the deceased, Joseph Polis, which was subject to distribution to his heirs, to warrant shifting the burden of proving otherwise onto the Appellants. If not, whether the Gombe State High Court was right to have held that the Appellants failed to call evidence to prove that some of the listed items were not part of the estate of the deceased. (Ground one)?    Whether the order of the lower Court dismissing Appeal No. GM/83A/2007, which is the subject matter of the present Appeal, ought to be varied to be an order of striking out, regard being had to the fact that the lower Court lacked the jurisdiction to entertain and determine the said Appeal to finality in view of its incompetence and invalidity in law.

RATIONES DECIDENDI

CASES CITED

STATUTES REFERRED TO

Court of Appeal Rules, 2011Evidence Act, 2011

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