AGUOCHA V. AGUOCHA

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AGUOCHA V. AGUOCHA

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1123

AGUOCHA V. AGUOCHA

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EUNICE AGUOCHA (MRS)

V

10 MADAM ELECHI AGUOCHA

APPELLANT

RESPONDENT

SUIT NO. SC 80/1985

SUPREME COURT OF NIGERIA

BELLO,

ANIAGOLU,

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UWAIS,

COKER,

KARIBI-WHYTE,

11th July, 1986

J.S.C.

J.S.C.

J.S.C.

J.S.C.

J.S.C.

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Practice and Procedure - Pleadings - Parties bound by - Evidence of issues not

pleaded goes to no issue. General traverse - No rebuttal of specific issues

pleaded.

Administration of Estate - Will - That, what beneficiary must prove to enforce

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provision absolute discretional)

,

clause to maintain - Meaning of.

Damages - Awarded by trial cow', based on issues neither pleaded nor canvassed

before it - Effect of.

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ISSUES:

1.

Whether facts not pleaded in the statement of claim, and therefore not in issue,

can be raised and contested on appeal.

2.

What would amount to, under the rules of court, a sufficient denial of material

and essential allegations pleaded by a plaintiff to a case?

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FACTS:

The Respondent was one of the beneficiaries under the Will of her son who

died on the 26th of November, 1971.

The testator appointed the Appellants (one of his two widows) the sole execu-

trix of the Will with an absolute discretion clause in the matter of the maintenance

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of the beneficiaries.

The Respondent brought an action at the Kaduna State High Court for the sum

of N42,793.80 being an amount she had spent on her self at the rate of N310.00

per month, from December 1971 to June, 1983, the appellant having failed to main-

tain her as directed in the Will. She also sought an order that the said amount be

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paid to her from the estate of the testator for the duration of her death.

When the matters was taken on commission in Imo State, neither the appellant

nor her counsel attended and the evidence of the respondent that she spent

N310.00 per month stood uncontradicted. The Appellant relied on the absolute

clause to maintain the beneficiaries contained in the Will and said she was not

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bound to maintain the respondent, while admitting that it was her duty under the

provisions of the Will to maintain the respondent. She further stated that she had

been discharging that duty by supplying the respondent's needs.