(2016) lpelr-40072(ca) - lawpavilionpersonal.com · citation: (2016) lpelr-40072(ca) ... pre-trial...
Post on 26-Aug-2018
246 Views
Preview:
TRANSCRIPT
OBIOHA & ORS v. OBIOHA
CITATION: (2016) LPELR-40072(CA)
In the Court of AppealIn the Owerri Judicial Division
Holden at Owerri
ON FRIDAY, 15TH JANUARY, 2016Suit No: CA/OW/359/2010
Before Their Lordships:
IGNATIUS IGWE AGUBE Justice, Court of AppealITA GEORGE MBABA Justice, Court of AppealFREDERICK O. OHO Justice, Court of Appeal
BetweenCHIEF SOLOMON OBIOHAPASTOR CHIDI OBIOHAMADAM MONICA OBIOHAMRS. ELIZABETH CY NWUKEMR. CY NWUKE
- Appellant(s)
AndMRS. IFY OBIOHA - Respondent(s)
RATIO DECIDENDI
(201
6) LP
ELR-40
072(
CA)
1 ACTION - PLEADINGS: Whetherpleadings can contain evidence"Appellants Counsel seem to haveforgotten that under the rules of pleadingsparties do not plead evidence but just thefacts. The Supreme Court in the case ofOJUKWU vs. YAR ADUA (2009) 12 NWLR(PT.1154) 50 per TOBI, JSC (as he thenwas) had this to say on the issue;"Facts are the fountain head of pleadings asthey are the basis of pleadings. That givesrise to the definition of pleadings asstatements of fact. A party cannot leadevidence on a fact not pleaded. SeeOKPALA vs. IHEME (1989) 2 NWLR (PT.102) 208; SPDC LTD vs. NWAWKA (2003) 6NWLR (PT. 815) 18.The primary function of pleadings is todefine and delimit with clarity andprecision the real matter in controversybetween the parties upon which theyprepare and present their respective casesand upon which the Court will be called toadjudicate between them. See ATOLAGBEvs. SHORUN (1985) 4 S.C. (PT. 1) 250."�Per OHO , J.C.A. (Pp. 29-30, Paras. E-D) -read in context
(201
6) LP
ELR-40
072(
CA)
2 JURISDICTION - JURISDICTION OF THESTATE HIGH COURT: Jurisdiction of StateHigh Court over letter of administrationissued outside the State"In any case, the attitude of this Court inrespect of issues of this nature is thatwherever the Respondent applied to forthe grant of a letter of Administration isusually of no consequence. This Court, perAUGIE, JCA had this to say in the caseBALOGUN V. AGBARA ESTATES LIMITED(2007) LPELR-8794 (CA);"It is well settled that the High Court of aState has jurisdiction to entertain an actionarising from the administration of theestate of a deceased person who diedintestate notwithstanding that the Lettersof Administration is in respect of propertieswithin the State while the Estate includesproperties outside the State- see SALUBIvs. NWARIAKU (2003) 7 NWLR (PT.819)426; AMOBI vs. NZEGWU (2005) 12NWLR (PT. 938) 120 & OKONYIA vs.IKENGAH & ORS (Supra)."Per OHO , J.C.A.(P. 32, Paras. B-E) - read in context
(201
6) LP
ELR-40
072(
CA)
3 PRACTICE AND PROCEDURE - RULESOF COURT: Effect of non-compliance withrules of Court"The settled position of the law is that non-compliance with rules of Court will notnecessarily result in the setting aside of ajudgment of Court especially where it isadequately demonstrated that copioussteps were taken by the party complainingabout the breach of the rules which he hassince waived."Per OHO , J.C.A. (Pp. 33-34,Paras. F-B) - read in context
(201
6) LP
ELR-40
072(
CA)
4 PRACTICE AND PROCEDURE - PRE-TRIAL CONFERENCE: Essence of a pre-trial conference"What should probably be borne in mind isthe fact that the pre-trial conference is arecent addition to the regime of lawsgoverning the new set of civil procedurerules of the High Court system in Nigeria,and that it is only meant to speed up thehitherto comatose civil trials which wereconducted under rules which had outlivedtheir usefulness due to failures to keeppace with the fast tempo of modern dayc o m m e r c i a l a n d o t h e r c i v i ltransactions."Per OHO , J.C.A. (P. 34, Paras.D-F) - read in context
5 PRACTICE AND PROCEDURE - RULE OFPRACTICE AND PROCEDURE: Effect ofbreach of rule of practice"Besides all of these, the breach of a ruleof practice can only render a proceedingirregularly conducted and not a nullity. Seethe case of GAMBARI vs. BUHARI (2009)ALL FWLR (PT. 479) 458 AT 501."Per OHO ,J.C.A. (P. 35, Para. A) - read in context
(201
6) LP
ELR-40
072(
CA)
FREDERICK O. OHO, J.C.A. (Delivering the LeadingJudgment): In the High Court of Imo State of NigeriaHolden at Orlu Judicial Division, Judgment was delivered onthe 21-6-2010 in suit No. HOR/149/2008 in favour of thePlaintiff/Respondent when learned trial Judge granted theClaims of the Plaintiff and awarded in her favour the rightto take control and manage her deceased husband'��sestate to be included in a letter of administration to whichCourt declared she was qualified to apply for. The Courtalso ordered the 2nd Defendant to render an account of allrents collected and proceeds from D85 Head Bridge to theClaimant and her Children and a restraining Order againstthe Defendants, their agents, servants etc. from interfering,confiscating, controlling or laying claims over any propertythat constituted the estate of the claimant�s deceasedHusband. The Respondent as Plaintiff commenced this suitby writ of summons filed on the 20-8-2008 and by aStatement of claim dated 28-1-2009 at paragraph 17claimed the following:"��17. WHEREFORE the Plaintiff claims against theDefendants jointly and severally:1. A DECLARATION that the
1
(201
6) LP
ELR-40
072(
CA)
Plaintiff by virtue of her marriage to the deceased and sole
partner in the acquisition of all property that constitutes
the estate of the Husband is entitled to the control,
management and application for letters of administration.
2. A Declaration that the Plaintiff is entitled to the
Ownership and control of all properties listed on paragraph
7 of this claim to the exclusion of all the defendants who
may only advise.
3. A Declaration that the 2nd Defendant renders account of
all rents collected and proceeds from D85 bridgehead be
declared to the Plaintiff�s and the Children.
4. Perpetual Injunction restraining the Defendants their
agents, servants or privies from interfering, confiscating,
controlling or laying claim over any property that
constitutes the estate of the plaintiff�s Husband.
The Defendant/Appellant herein denied the claims of the
Plaintiff/Respondent through the filing into Court of a
Statement of defense dated the 19-3-2009 and filed same
date.
Parties fielded their witnesses in the trial and at the close
of hearing learned Counsel addressed Court extensively,
citing a plethora of decided cases. The learned trial Judge
delivered
2
(201
6) LP
ELR-40
072(
CA)
its Judgment on the 21-6-2010 giving judgment in favour of
Plaintiff/Respondent.
Dissatisfied with the judgment of the lower Court the
Defendants/Appellants have appealed to this Court vide an
original Notice of Appeal dated 28-6-2010 and filed on
1-7-2010 containing a Ground. However, by an application
to that effect, the Appellant sought the leave of Court which
was granted and the original Notice of Appeal was
amended allowing for the filing of an Additional Eight (8)
Grounds of Appeal bringing it all to nine (9) which without
their particulars are reproduced as follows;
GROUNDS:
1. The learned trial judge erred in law when he assumed
jurisdiction in this suit.
2. The learned trial judge erred in law in entertaining the
suit, subject matter of this Appeal when it lacked the
jurisdiction to do so.
3. The trial High Court 2, Orlu Imo State erred in law to
have chosen without any reason one out of the two
separate statements of claim filed by the Plaintiff without
first inviting any addresses by the parties Counsel despite
the argument without any reason of the trial High Court in
his judgment that the reliefs in the 1st statement of claim
“were however
3
(201
6) LP
ELR-40
072(
CA)
overtaken by the reliefs in the claimant’s statement of
claim dated and filed on 12th of February, 2009.”
4. The trial High Court erred in law to have given judgment
to the plaintiff based on the pleadings only and unproved
facts.
5. That the trial High Court was biased when he pre-
empted his judgment in the suit when he made the
pronouncement in a ruling concerning the material issues
in dispute in the substantive suit whereas the parties have
not testified by adopting their depositions and possibly
cross examined, did not conduct pre-trial conference and
even interfered by debarring the claimant from answering
material questions during her cross-examination.
6. That the claimant has no locus standi to institute the suit
which is a probate action.
7. The trial High Court erred in law to have held that the
marriage between the claimant and Victor Obioha (the
deceased) was subsisting by the time the action was
commenced.
8. That the trial High Court erred in law to have admitted
evidence at variance with the pleadings.
9. The trial High Court erred in law to have given judgment
to the plaintiff not based on evidence but on the pleadings.
Parties filed and
4
(201
6) LP
ELR-40
072(
CA)
e x c h a n g e d b r i e f s o f a r g u m e n t . I n t h e
Defendant/Appellants� (hereinafter called; �the
Appellants�), brief of argument was settled by Mrs. N. D.
Iwu dated 31-7-2013 and filed 14-8-2013. Three (3) issues
were nominated for the Court�s determination to wit:
1. Whether the lower Court was right in holding that
the marriage between the respondent and her
deceased husband was a Christian marriage as
recognized by the Marriage Act, Cap M6., LFN, 2004?
2. Whether the lower Court had the jurisdiction to
make pronouncements as to the entitlement of items
of property lying and situate outside its territorial
jurisdiction?
3. Whether the lower Court lacked the requisite
jurisdiction to determine this suit without conducting
a pre-trial conference which is a pre-condition to the
exercise of the jurisdiction by Court in this case?
The Plaintiff/Respondent�s (hereinafter called; �the
Respondent�) brief of argument was settled by Justice A.
David, Esq., who adopted the issues nominated by the
Appellant herein and upon which he also addressed Court.
For this reason this Court shall also adopt the issues
nominated by the Appellant in
5
(201
6) LP
ELR-40
072(
CA)
determining this Appeal.
ARGUMENTS OF APPELLANT’S COUNSEL
ISSUE ONE;
Whether the lower Court was right in holding that the
marriage between the respondent and her deceased
husband was a Christian marriage as recognized by
the Marriage Act, Cap M6., LFN, 2004?
It was the submission of learned Appellant’s Counsel that
the lower Court was wrong in holding that the marriage
between the respondent and her deceased husband was a
Christian marriage as recognized by the Marriage Act Cap
M6 LFN 2004. Counsel referred Court to Section 21 of
the Marriage Act Cap M6 LFN 2004, as it relates to the
celebration of marriage which provides as follows:
“Marriage maybe celebrated in any licensed place of
worship by any recognized minister of the church,
denomination or body to which such place of worship
belongs and according to the rites or usages of
marriage observed in such church, denomination or
body: provided that the marriage be celebrated with
open doors between the hours of eight o’clock in the
forenoon and six o’clock in the afternoon, and in the
presence of two or more witnesses besides the
officiating minister”.
It was the argument
6
(201
6) LP
ELR-40
072(
CA)
of learned Counsel that Section 21 of the Marriage Act
in essence spells out factors which constitutes a valid
Christian marriage as recognized by the law. He argued
further that a Christian marriage as recognized by the Act
is to be celebrated in a licensed place of worship by a
recognized minister of the church, denomination or body to
which such place of worship belongs, in accordance with
the rites or uses of marriage observed in such church,
denomination or body. As far as Counsel is concerned to be
valid, the marriage shall be celebrated with open doors
between the hours of eight o’clock in the forenoon and six
o’clock in the afternoon, and in the presence of two or more
witnesses besides the officiating ministers. Counsel cited
the case of IJIOMA vs. IJIOMA (2009) 12 NWLR (PT.
1156) 593 AT 608 – 608.
Counsel contended that anyone desirous of establishing
that a marriage is a Christian marriage recognized by the
Act must show that the marriage so contracted complied
with the provisions of Section 21 of the Marriage Act. In
addition, Counsel said that to prove compliance with the
provisions of Section 21 of the Act, every certificate of
7
(201
6) LP
ELR-40
072(
CA)
marriage filed in the office of the registrar of marriages of
any district, or any copy thereof purporting to be signed
and certified as a true copy by the registrar and every entry
in a marriage registrar'��s book or copy thereof certified
shall be admissible as evidence of the marriage to which it
relates in any Court of law. See IJIOMA vs. IJIOMA
(supra) pg. 599.
It was further contended by Counsel that a celebration of
marriage in a church which does not comply with the
provisions of Section 21 of the Act is at best a mere
church blessing. In the instant case, he argued, that the
learned trial Judge based his judgment on the evidence led
by the respondent as to the type and status of the marriage
she contracted with the deceased where she said at page
176 of the records of Appeal as follows;
"��I wedded at the church on 12th April 1997 being a
Saturday and on Monday 14th April 1997 my husband took
me to the marriage registry at Kano State where I signed
documents relating to our marriage."
Learned Counsel said that apart from the fact that the
Respondent said that she went to the said marriage registry
only with the husband, that the evidence led on
8
(201
6) LP
ELR-40
072(
CA)
facts were not pleaded by the Respondent. Counsel
submitted that evidence led on facts not pleaded goes to no
issue. He cited the case of NATIONAL INVESTMENT
PROPERTIES CO. LTD. vs. THE THOMPSON
ORGANISATION LTD. (1969) NWLR AT 104 on the
issue. Counsel said that the trial judge erred in relying on
the case of SALIMOTU COKER & 5 ORS vs. ALFRED
BABATUNDE COKER & ANOR. VOL. 17 NLR R55 &
OLOWU vs. OLOWU (1985) 3 NWLR (PT. 13) 372 to
hold that the Respondent having contracted a Christian
marriage, the deceased estate is subject to English Law for
the purpose of distribution of his estate upon intestacy.
It was also argued by Counsel that the two cases cited
above are distinguishable from the instant case. He said
that in the former, the marriage contracted by the parties
were Christian marriages as recognized by the marriage
Act while in respect of the latter, he argued that the
marriage celebrated between the respondent and the
deceased was not a Christian marriage recognized by the
Marriage Act, but was rather, a mere church blessing,
different from a Christian marriage recognized by the Act.
It was further contended by Counsel that a fact not proved,
9
(201
6) LP
ELR-40
072(
CA)
even if pleaded will go to no issues. He cited the cases of
AGALA vs. OKOSIN (2010) 10 NWLR (PT. 1202) 412
AT 436; EMEGOKWE vs. OKADIGBO (1973) ALL NLR
314 in support. Learned Counsel also contended that the
respondent neither pleaded nor led evidence to show that
the items of property subject matter of the dispute were
jointly acquired by her and the deceased. In addition,
Counsel said that the respondent neither pleaded nor
showed in evidence that by her type of marriage, she is the
sole survivor to her deceased husband’s estate having
instituted this action in her personal capacity. Counsel
urged this Court to resolve this issue in favour of the
Appellants.
ISSUE TWO;
Whether the lower Court had the jurisdiction to make
pronouncements as to the entitlement of items of
property lying and situate outside its territorial
jurisdiction?
Counsel submitted that the lower Court had no jurisdiction
to adjudicate over items of property lying and situate
outside its territorial jurisdiction and to make
pronouncements of entitlement of ownership control and
management. He referred Court to Order 2 Rule 1 of the
High Court of Imo State (Civil Procedure) Rules 2008
(201
6) LP
ELR-40
072(
CA)
which provides as follows:
"��All suits relating to land or any mortgage or
charge on or any other interest or injury to land and
also all actions relating to personal property detained
or seized for any cause, shall be commenced and
determined in the judicial division in which the land
is situated, or the distraint or seizure took place."
Against this background, Counsel drew attention to the
locations of the properties involved in the instant suit,
which included the shops at Onitsha at No. D 85 and M
Line Head Bridge Onitsha and two Plots of land in Okpoko
in Anambra State and a large portion of land behind the
said duplex. Counsel also drew attention to a parcel of land
at Umuezikeukwu Uba Umuaka a five-storey building at No.
12 Adofi Street, Onitsha. Counsel further submitted that by
virtue of Order 2 Rule 1 of the High Court of Imo State
(Civil Procedure) Rules 2008, the Respondent instituted
the suit in the wrong jurisdiction which is outside the lex
situs. Counsel urged Court to resolve Issue No. 2 for
determination in favour of the Appellants.
ISSUE THREE:
Whether the lower Court lacked the requisite
jurisdiction to determine this suit
11
(201
6) LP
ELR-40
072(
CA)
without conducting a pre-trial conference which is a
pre-condition to the exercise of the jurisdiction by
Court in this case?
The submission of learned Counsel on this issue is that the
lower Court lacked the requisite jurisdiction to determine
this suit without conducting a pre-trial conference which,
he said is a pre-condition to the exercise of the jurisdiction
by the Court. In putting this in another way, he said that
the pre-trial Conference is a condition precedent to the
exercise of such jurisdiction and that where the lower
Court is found not to have the jurisdiction to hear and
determine the relevant proceedings in this case, then
whatever it had decided becomes null and void however
well conducted or determined. Counsel said that from the
records of appeal no pre-trial conference was shown to
have been held.
In support of this argument, Counsel cited the cases of
OKEREKE vs. YAR’ADUA (2008) 12 NWLR (PT. 1100)
PG. 127 (PARAS. E – F) and MADUKOLU vs.
NKEMDILIM (1962) 2 SCNLR 34 in support. Counsel
argued that there is non-compliance with due process of
law in this case. He referred Court to the case of SAUDE
vs. ABDULLAHI (1989) 4 NWLR (PT.
(201
6) LP
ELR-40
072(
CA)
116) 387 AT 421 - 422 AT 422 where the SupremeCourt held as follows:"��There is non-compliance with due process of lawwhen the procedural requirements have not beencomplied with or the preconditions for the exercise ofjurisdiction have not been complied with in such acircumstance as in the other, the defect is fatal to thecompetence of the trial Court to entertain the suit.This is because the Court will in such a situation notbe seised with jurisdiction in respect of the action."
Learned Counsel referred to the provisions of Order 25Rule 1(1) and (2) of the Imo State High Court (CivilProcedure) Rules 2008 which he said provides for theconvening of a pre-trial Conference and that the saidprovisions clearly makes a pre-trial conference mandatoryand not optional. He added that the legislation makes apre-trial conference not only important but also acondition precedent to the exercise of the requisitejurisdiction of the Court. Counsel urged this Court toresolve Issue No. 3 in favour of the Appellants.
ARGUMENT��S OF RESPONDENT'��S COUNSEL.ISSUE ONE;In answer to the submissions made by learnedAppellant��s' Counsel
13
(201
6) LP
ELR-40
072(
CA)
learned Respondent�s Counsel said that the Respondent
remained the only wife of the deceased Victor Obioha, the
management of whose estate is now in dispute. Counsel
said that the Respondent in her statement of Claim averred
that she was the only legitimate wife of her husband until
his demise. He referred Court to page 33 paragraphs 3 of
the records of appeal. According to learned Counsel, this
averment was not denied by the Appellants, which means
that the Appellants admitted that the Respondent was the
only legitimate wife of her husband.
It was the submission of learned Counsel that the Court is
entitled to rely on un-contradicted evidence as in the
instant case. He cited the case of NIRCHANSDANI vs.
PINHEIRO (2001) FWLR (Pt. 48) 1307 CA. He
submitted in this correction, that, that which is admitted
does not require further proof by evidence, whether
documentary or oral. See the cases of AGBANELO vs.
UBN LTD. (2000) 4 SC (PT. 1) 233; AKPAN vs. UMOH
(1999) 11 NWLR (PT. 627) 349 SC.
On the question of whether the Respondent needed to have
established the nature of her marriage to the deceased
Victor Obioha, learned Counsel submitted that the
Respondent
14
(201
6) LP
ELR-40
072(
CA)
does not need to produce any documents to show that there
was a valid and subsisting marriage between her and her
husband until his demise. He referred Court to Section
125 of the Evidence Act, 2011, which provides thus;
��all facts except the contents of documents, may be
proved by oral evidence��. Counsel also cited the case of
OGU vs. M. I. & M. C. S. Ltd. (2011) 8 NWLR (Pt.
1249) 345 in support.
Learned Counsel argued that the subject matter of Suit No.
HOR/149/2008 and of this appeal is management of the
estate of the Respondent�s late husband and not the
validity of the marriage entered into between the
Respondent and her late husband. He emphasized that the
suit at the lower Court and in this appeal are not grounded
under the Matrimonial Causes Act in which the Respondent
is saddled with the responsibility of pleading and proving
the place where the Respondent celebrated her marriage
with her late husband. Counsel added that the failure of the
Respondent to plead the marriage certificate of the
marriage between her and her late husband does not in any
way nullify the marriage between the Respondent and her
late husband or vitiate this
(201
6) LP
ELR-40
072(
CA)
action which was instituted to retrieve the late husband’s
property from the Appellants. Counsel also argued that the
facts of the marriage contracted under the marriage Act
notwithstanding, the parties also contracted a valid
marriage under native laws and custom.
According to learned Counsel, in the case of AYO vs.
STATE (2010) All FWLR (530) 1377 at 1384 CA the
Court of Appeal has said that, by the provisions of
Section 2 of the Evidence Act, the words ‘wife’ and
‘husband’ means wife and husband of a monogamous
marriage. It was further contended by Counsel that there
was no law which bars the Respondent from instituting an
action in respect of her late husband’s estate in her
personal capacity being the only wife of her late husband
and on behalf of her four children, who are the only
children of her late husband. Counsel said that the
Respondent has been in custody of the children and had
been the only one taking care of the children’s welfare ever
since the death of her husband.
It was also contended that where the Christian Marriage
celebrated by the Respondent and her deceased husband
does not comply with the
(201
6) LP
ELR-40
072(
CA)
provisions of the Marriage Act, that in itself is not enough
reason to invalidate the marriage as the only act(s) that can
invalidate the marriage is/are those contained in Section
33(2) of the Marriage Act which provides as follows.
"��But no Marriage shall, after celebration, be
deemed invalid by reason that any provision of this
Act other than the foregoing has not been complied
with." Counsel urged the Court to resolve issue one in
favour of Respondent.
ISSUE TWO;
Learned Counsel sought to make a clarification in this case.
He contended that the nature of the dispute between the
parties in this case, was grounded solely on the
management of the properties constituting the estate of the
Respondent�s late husband and no more. He said that all
properties owned by the Respondent�s late husband
irrespective of where they are situated collectively
constitute the estate of the Respondent�s late husband.
According to learned Counsel, what is in dispute in this suit
is not the question of ownership of the properties of the
estate of late Victor Obioha, the Respondent�s deceased
husband, but the question of management of the
17
(201
6) LP
ELR-40
072(
CA)
properties, that is, who should be in charge or entitled to
the management of the estate of late Victor Obioha. For
this reason, learned Counsel argued that the trial Court
therefore, had the jurisdiction to make pronouncements on
those properties which are subject of the estate of
Respondent’s deceased husband. In his arguments, Counsel
said that the Appellants never at any time disputed the
ownership of the said properties and therefore, need not be
a subject of dispute in this case.
Learned Counsel also submitted that where the question of
mode of marriage is not found to be Christian marriage,
that does not give the Appellants priority in respect of the
estate of the Respondent’s deceased husband over the
Respondent and her children. He cited the case of
OBUSEZ vs. OBUSEZ (2007) 10 NWLR (PT. 1043) in
support. Counsel urged this Court to resolve this issue in
favour of the Respondent.
ISSUE THREE;
It was the contention of learned Respondent’s Counsel that
a pre-trial conference was conducted by the lower Court.
He said that at the close of pleadings, pre-trial papers were
exchanged by both parties to the suit at the lower Court. In
18
(201
6) LP
ELR-40
072(
CA)
compliance with Order 25 Rules 1(1), (2) & (3) of the
Imo State High Court (Civil Procedure) Rules 2008,
Counsel said that the claimant’s (now Respondent) Counsel
applied for pre-trial papers to be issued and same were
issued. He drew attention to pages 112-115 of the Printed
Records where the application for pre-trial forms and the
pre-trial forms issued are contained. Learned Counsel also
said that the defendants (now Appellants) answers to the
pre-trial questions are contained at page 128 of the
Records of Appeal.
Counsel further said that at the trial Court, pre-trial papers
were duly issued and answers to pre-trial questions were
filed. He emphasized that there was nothing that was
meant to have been done at the pre-trial conference that
was left undone. Learned Counsel told Court that the
matter was fixed for pre-trial conference on the 21st day of
2009. But on that day Appellants Counsel brought an
application challenging the jurisdiction of the trial Court to
entertain the matter which then led to the adjournment of
the matter as the claimant (now Respondent) Counsel
needed time to react to the application. He referred Court
to page 204 of
19
(201
6) LP
ELR-40
072(
CA)
the Records of Appeal. According to Counsel, Ruling on the
application was given and pre-trial was fixed for a later
date and concluded before the matter proceeded to
hearing.
Learned Counsel said that one of the applications made by
the defendants’ (now Appellants) Counsel in his pre-trial
answers was that the matter proceeded to full hearing or
trial in order to determine the same issue, as contained at
page 128 of the Records of Appeal, no. 12. Counsel said
that having complied with the provision of Order 25 Rule
1(1) and (2), and every other things necessary, the matter
was then fixed for hearing on a date agreed upon between
the parties. Counsel submitted in the alternative that the
absence of pre-trial conference does not rob the Court of its
jurisdiction. He said that to insist on the issue, the way the
Appellants are doing is to rely on technicality in this appeal
which the superior Courts have often frowned against in a
plethora of decided cases. Counsel urged this Court to
resolve this issue in favour of the Respondents.
RESOLUTION OF APPEAL;
The need to give a resume of the facts of this case cannot
be over emphasized at least to provide the
(201
6) LP
ELR-40
072(
CA)
necessary background required for a proper understanding
of what transpired between the parties who are of the same
family and probably led to the sordid turn of events in the
matter before Court. The Respondent herein presented
herself an only wife of the deceased Victor Obioha. The
marriage between the Respondent and the deceased
produced four (4) children, three (3) boys and a girl. The
girl is the first born of the family.
Prior to the death of her late husband the couple had a
misunderstanding which was said to have been escalated
by the Appellants and their family members who are all
relations of the deceased Victor Obioha. The Respondent
was said to have been forced to vacate the matrimonial
home due to the antics and overbearing attitude of the
Appellants and other members of the family. All efforts
made by the Respondent in order to return to her
matrimonial home were said to been thwarted by the
Appellants. It is also the Respondent’s story that she was a
nursing mother when she was pushed out of the
matrimonial home by the Appellants as she had just given
birth to the last child of the family who was just under a
year old at the time.
The deceased,
21
(201
6) LP
ELR-40
072(
CA)
that is the Respondent’s late husband later fell sick and
died after several treatments to no avail and of a time when
the Respondent and her children were still literally on
“exile”. At the death of the Respondent’s husband the
Appellants were said to have confiscated the deceased’s
properties and monies of the Respondent’s late husband
including the Respondent’s and her children’s personal
belongings in the couple’s matrimonial home at Onitsha.
The Appellants were said not to have stopped at that as
they also accused the Respondent of being the person
responsible for the death of her deceased’s husband.
Consequently, the Respondent took out a civil action
against the Appellants at the Orlu Division of the Imo State
High Court in Suit No. HOR/149/2008 seeking the following
relief:
a. A declaration of Court that a clear examination be
carried out to prove the cause of death of the plaintiff’s
husband before burial.
b. An Order that all properties of the deceased with the
only legitimate wife (plaintiff) be released to the plaintiff
and the children.
c. A perpetual injunction restraining the
22
(201
6) LP
ELR-40
072(
CA)
defendants, their agents, privies, cohorts from interfering,
confiscating the properties of the deceased without
recourse to the deceased legitimate wife.
The suit was instituted prior to the coming into effect of the
Imo State High Court (Civil Procedure) Rules, 2008. And
the parties were appropriately on the 19th day of January,
2009 ordered to comply with the new rules. See page 169
of the Records of Appeal. Parties eventually led evidence at
the trial Court based on their new processes filed in
compliance with the new rules and in obedience to the
order of Court. At the conclusion of trial, the Court entered
judgment in favour of the Respondent which said judgment
the Appellants were dissatisfied with by lodging this appeal
in this Court, to have the judgment of the High Court of
Justice, Imo State sitting at Orlu given on the 21st day of
June, 2010 set aside.
However, on the part of the Appellants, the Respondent is
mostly seen as a villain, who was steeped in diabolism and
all sorts of wicked acts which eventually led to the death of
the said Victor Obioha, her husband. The Respondent was
said to have deserted the deceased Victor Obioha shortly
before he
23
(201
6) LP
ELR-40
072(
CA)
died and that she was high handed and cruel not only to the
relations of her deceased husband but also to her children
born in the union of the Respondent and the deceased. The
Appellants have therefore come before this Court to
contend that the Respondent was not married to the
deceased Victor Obioha under the Marriage Act. As far as
the Appellants were concerned, the marriage was merely
blessed in the Church and not contracted in accordance
with the Marriage Act.
In the judgment of the lower Court contained at 168 to 184,
it is instructive to note that the learned trial Judge
identified the operational statement of claim of the
Respondent as the one filed on the 12-2-2009 but dated
28-1-2009. See page 168 of the printed records of
proceedings at paragraph 3 line 7. This process is
contained at pages 33 to 35 of the records of proceedings.
It is rather worrisome to note, that at the lower Court, the
issue of the form of marriage contracted between the
Respondent and the deceased husband was never given all
the prominence the issue seem to have now attracted here
on Appeal. All that the Respondent as Plaintiff before the
lower Court said on the issue was only a
24
(201
6) LP
ELR-40
072(
CA)
fleeting mention in the passing at paragraph 10 of the said
statement of claim when she deposed as follows;
“The Plaintiff had commenced the application for the
Administration of Estate of her husband as required by law
in a monogamous marriage”.
On the part of the Appellants, the operational statement of
defense in the Court’s record is the one contained at pages
47 to 48 of the records of proceedings. The said statement
of defense is dated and filed on the 19-3-2009. It is also
instructive to note once again that all that was said about
the Respondent’s form of marriage with the deceased
Victor Obioha is contained at paragraph 1 where the
Appellants joined issues with the Respondent when they
averred as follows;
“The claimant is not a wife to the late Victor Obioha as at
the date of his death having deserted him without
complaint or remorse and enjoyed living as a ‘feme sole’.
They however had wedded under the customary law, had
the church bless that marriage but not under any statute,"
The findings of the learned trial Judge on the issue are as
interesting and as it’s instructive. See pages 177 to 178 of
the
25
(201
6) LP
ELR-40
072(
CA)
records of proceedings where the Court said;
“In this case, the parties are agreed on the following
fact, namely;
1. That the marriage between the deceased and the
claimant was a Christian Marriage.
2. That while the marriage lasted for 11 or 12 years or
more, that the deceased did not marry another
woman oe wife.
3. That the said Christian Marriage was celebrated on
12th April, 1997, while the deceased died in August
2008.
4. That the deceased had estates both at their viilage
Umuonyiriegbe Uba Umuaka in Njaba Local
Government Area of Imo State and Onitsha in
Anambra State.
5. That the marriage was survived by four children
three of whom are males.
6. That the claimant and not the defendants has been
in the custody of the said children even before the
death of the claimant’s husband.
7. That the DW2 (the second defendant in this
case)has on his admission been controlling and
managing the said estates of the deceased since the
death of his brother and that he had not known the
situation of his said deceased’s brother’s children
since then.
The question whether the above first three sets of
facts is demonstrative of monogamous marriages,
readily
(201
6) LP
ELR-40
072(
CA)
answered by me in the affirmative. I also add that
they connote equally an election outside the
customary cleavages by the deceased in relation to
his personal estate. In the case of SALAMORU COKER
& 5 ORS vs. ALFRED BABATUNDE COKER & ANOR
vol. 17 NLR 55, the Court held thus; ‘that the
intestate estate of a native who contracts Christian
marriage or civil marriage is removed from operation
of native law of succession and brought under
common law.’ And again, in the case of OLOWU vs.
OLOWU (1985) 3 NWLR (PT. 13) 372, the Supreme
Court stated thus; ‘where a person previously subject
to customary law undergoes a marriage celebrated
either by Christian rites or according to English law
or in accordance with the provisions of the marriage
Act he is deemed to have rendered himself subject to
English law for the purpose of distribution of his
estate upon intestacy’.
In the light of all the above authorities, the
conclusion I reach on this issue is that this case is not
one under customary law and therefore that a case of
desertion and divorce as made by Counsel to the
defendants do not arise for consideration and so the
case of NWANGWA
(201
6) LP
ELR-40
072(
CA)
vs. UBANI Supra is inapplicable to this case."��
I am simply unable to disagree with the learned trial judge
on this issue. The Appellant�s cannot in all sincerity
claim not to know that the status of the Respondent�s
marriage with her deceased's husband when from their
own showing, at paragraph 7.2.3. of the Appellant��s' brief
of argument, they acknowledged that the trial judge based
his judgment on the evidence led by the Respondent as to
the type and status of the marriage she contracted with the
deceased on her evidence given on facts at page 176 of the
records of proceedings where she said;
"��I wedded at the Church on the 12th April, 1997 being a
Saturday and on Monday 14th April, 1997 my husband took
me to the marriage registry at Kano State where I signed
documents relating to our marriage. She added that she
went to the said marriage registry only with the
husband"��.
It is, however, interesting to note that the only point of
observation and probably of disagreement raised by
Appellant��s' Counsel to this piece of evidence was that it
was evidence led on facts not pleaded. Counsel argued that
a plaintiff in an
(201
6) LP
ELR-40
072(
CA)
action must call evidence in support of his pleadings and
cited a couple of decided cases in support of this point. But
the question to address here is whether the piece of
evidence given on this issue was indeed not pleaded as
claimed by learned Appellant��s' Counsel? It would be
recalled that at the beginning of the Court�s exercise on
this issue, the Court referred to the fact that the parties
joined issues on the question of the form of marriage
contacted between the Respondent and her deceased
spouse, where the Respondent said at paragraph 10 of her
statement of claim that hers was a monogamous marriage
with the deceased and then at paragraph 1 of the statement
of defense where the Appellants said that what the
Respondent had going for her was a customary law
marriage irrespective of the fact that the couple had first
taken themselves to Church for a marriage blessing.
If these do not constitute pleadings on the facts, I wonder
what else does. Appellant��s Counsel seem to have
forgotten that under the rules of pleadings parties do not
plead evidence but just the facts. The Supreme Court in the
case of OJUKWU vs. YAR ADUA (2009) 12 NWLR (PT.
29
(201
6) LP
ELR-40
072(
CA)
1154) 50 per TOBI, JSC (as he then was) had this to say on
the issue;
"��Facts are the fountain head of pleadings as they
are the basis of pleadings. That gives rise to the
definition of pleadings as statements of fact. A party
cannot lead evidence on a fact not pleaded. See
OKPALA vs. IHEME (1989) 2 NWLR (PT. 102) 208;
SPDC LTD vs. NWAWKA (2003) 6 NWLR (PT. 815) 18.
The primary function of pleadings is to define and
delimit with clarity and precision the real matter in
controversy between the parties upon which they
prepare and present their respective cases and upon
which the Court will be called to adjudicate between
them. See ATOLAGBE vs. SHORUN (1985) 4 S.C. (PT.
1) 250."��
What did transpire in the instant case is that the
Respondent stated in her paragraph 10 that her marriage
with the deceased husband was a monogamous marriage,
short and simple and when the Appellants filed their
statement of defense, they joined issues with the
Respondent by saying that her form of marriage was
customary marriage. That was why when she gave her
evidence on the issue she took her time and the opportunity
of her evidence as required in saying why her marriage was
30
(201
6) LP
ELR-40
072(
CA)
monogamous and not customary marriage. I cannot see
myself faulting the findings and conclusions made by the
learned trial judge on the issue. To this end, the issue
number one is resolved in favour of the Respondent.
In respect of the issues raised in issue two, learned
Appellant��s Counsel contended that the lower Court had
no jurisdiction to adjudicate over items of property lying
and situate outside its territorial jurisdiction and make
pronouncements of entitlement of ownership, control and
management. Learned Respondent��s Counsel on its part
had argued that the present action between the parties is
not about determining the issue of ownership of the
properties involved in the estate of the deceased Victor
Obioha but about the management of these properties. It is
on account of this argument that it becomes necessary to
observe that the first relief claimed by the Respondent
herein, at paragraph 14 (a) of the statement of claim is for
a declaratory order seeking the placement of the estate of
the deceased Victor Obioha in Respondent��s hands. For
the avoidance of doubt, the said paragraph 14(a) is
reproduced as follows;
"A Declaration
31
(201
6) LP
ELR-40
072(
CA)
that the Plaintiff by virtue of her marriage to thedeceased and sole partner in the acquisition of allproperty that constitute the estate of the husband isentitled to the control, management an applicationfor letter of administration��."
In any case, the attitude of this Court in respect of issuesof this nature is that wherever the Respondent appliedto for the grant of a letter of Administration is usually ofno consequence. This Court, per AUGIE, JCA had this tosay in the case BALOGUN V. AGBARA ESTATESLIMITED (2007) LPELR-8794 (CA);"��It is well settled that the High Court of a Statehas jurisdiction to entertain an action arising fromthe administration of the estate of a deceasedperson who died intestate notwithstanding that theLetters of Administration is in respect of propertieswithin the State while the Estate includesproperties outside the State- see SALUBI vs.NWARIAKU (2003) 7 NWLR (PT. 819)426; AMOBIvs. NZEGWU (2005) 12 NWLR (PT. 938) 120 &OKONYIA vs. IKENGAH & ORS (Supra)."��Arising from the forgoing, the issue two is also resolvedin favour of the Respondents.
On account of the third issue raised for the
32
(201
6) LP
ELR-40
072(
CA)
determination of the Court, Appellant had contended that
the lower Court failed to conduct a pre-trial Conference as
required under the Rules of Court, precisely the Order 25
Rules 1(1), (2) & (3) of the Imo State High Court
(Civil Procedure) Rules 2008. According to learned
Counsel the convening of a pretrial Conference is a
condition precedent to the hearing of any suit filed in Court
and that the failure to so conduct one robs the lower trial
Court of the jurisdiction to hear the case.
Counsel cited the locus classicus of MADUKOLU vs.
NKEMDILLIM (1962) 2 SCNLR 341 and a host of other
cases in support of his argument. On the part of the
Respondent, learned Counsel told Court that the lower trial
Court complied with the provisions of Order 25 Rules
1(1), (2) & (3) of the Imo State High Court (Civil
Procedure) Rules 2008 as the Court duly convened a
pretrial conference and referred Court copiously to
portions of the Court'��s record on the issue and which I
have no cause to doubt. However, if it is to be assumed that
there was no compliance and that a pre-trial conference
was indeed not convened, what becomes of the issue?
The settled position of
33
(201
6) LP
ELR-40
072(
CA)
the law is that non-compliance with rules of Court will not
necessarily result in the setting aside of a judgment of
Court especially where it is adequately demonstrated that
copious steps were taken by the party complaining about
the breach of the rules which he has since waived.
I have carefully examined the processes in this proceedings
and did not see anywhere the Appellant as Defendants
raised objections in protest against non-compliance with
the said Order 25 Rules 1 (1),(2),& (3) of the Imo State
High Court Rules. In raising his objections belatedly on
the issue, learned Appellant�s Counsel did not state
whether by the non-compliance complained about any of
the parties is prejudiced in any way. What should probably
be borne in mind is the fact that the pre-trial conference is
a recent addition to the regime of laws governing the new
set of civil procedure rules of the High Court system in
Nigeria, and that it is only meant to speed up the hitherto
comatose civil trials which were conducted under rules
which had outlived their usefulness due to failures to keep
pace with the fast tempo of modern day commercial and
other civil transactions.
34
(201
6) LP
ELR-40
072(
CA)
Besides all of these, the breach of a rule of practice can
only render a proceeding irregularly conducted and not a
nullity. See the case of GAMBARI vs. BUHARI (2009)
ALL FWLR (PT. 479) 458 AT 501.
In the final analysis the issue three is also resolved against
the Appellants and this Appeal is accordingly dismissed
with cost assessed at N100,000.00 in favour of the
Respondent. The judgment of the learned trial Judge, L. C.
Azuama J, of the High Court Justice of Imo State sitting, at
Orlu and delivered on the 21-6-2010 is hereby affirmed.
IGNATIUS IGWE AGUBE, J.C.A.: I had the privilege ofreading in advance the judgment delivered by my brother,Frederick O. Oho, JCA.
The issues that came up for determination in this appealwere adequately considered and resolved in the leadjudgment. I have nothing else useful to add. In that respect,I also dismiss the appeal as lacking in merit.
I abide by the consequential orders made therein.
ITA GEORGE MBABA, J.C.A.: I had the privilege ofreading the lead judgment by my learned brother, F.O.Oho JCA, resolving the issues against the Appellants.
35
(201
6) LP
ELR-40
072(
CA)
I agree completely with his reasoning and conclusions,
which in my view, are quite illuminating and in consonance
with the law, in the circumstances. I too dismiss the appeal
and abide by the consequential orders in the lead
judgment.
36
(201
6) LP
ELR-40
072(
CA)
top related