The respondents (plaintiffs) instituted a probate action to contest the Will of Gabriel Fento Appio whose address at the time of the Will was given as No.37 Raymond Njoku Road South West Ikoyi, Lagos.

The 1st, 3rd and 4th appellants (defendants) were executors of the will.

By a motion ex parte the respondents sought, inter alia leave to issue and serve a writ of summons on the appellants. The first 3 respondents live in Lagos while the 4th respondent lives in London, all outside the jurisdiction of the Cross River State High Court where the action was contemplated. Nine other orders were asked for among which were an order for interim injunction to restrain the appellant from intermeddling with the estate of the deceased testator, an order that Emmanuel De Ugoji be appointed Administrator of the estate pending the final determination of the motion on notice to be filed upon the issue of the writ of summons; an order that the appellants shall render an account of all money belonging to the testator. The trial court granted all the prayers sought ex parte on November 4 1992.

The appellants, immediately on being aware of the decision of the High court filed an appeal against it on November 17, 1992.

The respondents then filed a motion at the Court of Appeal to have the Notice of Appeal struck out on the grounds that the grounds of appeal are vague; that the particulars of ground one either constitute evidence or do not support a complaint as to competence and trial while there were no particulars in respect of grounds two and three.

The appellants also filed a motion seeking leave to amend and add additional grounds of appeal. The two motions were taken, moved and argued together.