MOSES OGHENERUME TAIGA V. NNEKA MERCY MOSES-TAIGA
(2012)LCN/5106(CA)
In The Court of Appeal of Nigeria
On Thursday, the 19th day of January, 2012
CA/L/676/2008
RATIO
THE POSITION OF THE LAW ON THE INSTANCE WHERE APPELLATE COURT WILL DISTURB CONCURRENT FINDINGS OF FACTS BY THE LOWER COURT
The law is settled on the instance where appellate court will disturb concurrent findings of facts by the lower court, only where such findings are improper or perverse having regard to the evidence.
Ogbero Egri v. Edo Uperi (1974) 1 NWLR 22; Amusa Opoola Adio & Anor v. The State (1986) 2 NWLR (Pt. 241 581; Woluchem v. Gudi (1981) 5 SC 291; Oguanzee v. State (1998) 5 NWLR (Pt.551) 521 at 580.
The finding of the trial court which held and declared that a celebration of marriage under Ukwuani Custom took place between the parties on 16th March 2002 and that the Appellant intended to enter into the marriage as improper. PER. SIDI DAUDA BAGE, J.C.A
APPEAL: WHETHER THE APPELLATE COURT CAN MAKE FINDINGS OF FACT WHERE THIS HAS BEEN DONE BY THE TRIAL COURT
In given effect to the above two definitions, the law is now settled in this country that, it is not the function of an appellate court to make findings of fact where this has been done by the trial court and to reopen the issues of fact finally determined by the trial court, even if it would have come to a different finding if it were to do so. Nwosu v. Board of Custom & Excise (1988) 5 NWLR (Pt.93) 225; Egona v. Egona (1978) 11 – 72 SC. 111. The law here is that the cross-appellant must show perversity and improper use of discretion by the trial court. In the instant appeal instead of the cross-appellant to largely agree with the findings of the trial court, even with the qualification, which this court is certain, based on the arguments placed before it, has not eroded the credibility of findings of fact by the trial court she did not. The position of this court is that those findings of the trial court have not been proved to be perverse or amounted to an abuse of judicial discretion; this court will not therefore disturb those findings. This court found strength on this position from some decided authorities: – Nrian v. Akpan (1910) 3 NLR 70; Kodilinye v. Odu (1935) 2 W.A.C.A 336; Okoye v. Ejiofor (1934) 2 W.A.C.A. Aboshin v. Ugoh (1993) 2 NWLR (Pt.278) 752; Agboniju v. Aiweroba (1988) 1 NWLR (Pt.70) 325; Ojo v. Philips (1999) 5 NWLR (Pt.296) 757 at 768. PER. SIDI DAUDA BAGE, J.C.A
JUSTICES
JOHN INYANG OKORO Justice of The Court of Appeal of Nigeria
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
Between
MOSES OGHENERUME TAIGA Appellant(s)
AND
NNEKA MERCY MOSES-TAIGA Respondent(s)
SIDI DAUDA BAGE, J.C.A (Delivering the Leading Judgment): This is an appeal against the judgment of Oyefeso J. sitting at High Court of Lagos State, Ikeja Judicial Division, delivered on 11th April, 2008 in which the Appellant was the claimant. The Notice of Appeal filed by the Appellant to initiate this action is dated the 12th of May 2008, and contains six (6) grounds of Appeal.
The background facts to this action is as contained in the statement of claim filed by the claimant/Appellant at the lower court are as follows:-
(1) The claimant has a subsisting statutory marriage with the 2nd Defendant although they are estranged. On 21st December 1974 both parties were validly married in the St. James Anglican church at Benin city in accordance with the provisions of the marriage Act 1914 (The Act) by virtue of provisions of the Act, the marriage is a monogamous marriage.
(2) The parties lived together until 1994 when they separated. The claimant soon took up cohabitation with a woman who is not a party to this action and there are four children of their family.
(3) The claimant had a chequered relationship with the 1st Defendant firstly about June 1992 lasting about 18 months and secondly in about early 1999. At all material times the 1st Defendant was a girl friend or at bests a mistress to the claimant.
(4) At all material times the 1st Defendant was aware of the facts stated in paragraph 1 above.
(5) There are two twin daughters of the former relationship between the claimant and the 1st Defendant both born on 20th June, 2001.
(6) The 1st Defendant parades herself as the claimant’s wife when in fact she has never been married to him.
(7) On the 19th February 2003, the 1st Defendant presented a divorce petition against the claimant in case No.FD03D02234 in the family Division of the High Court of Justice in London. In this petition she alleged that on 22nd December 1993 the claimant contracted a Customary Marriage with her at Utogba-Uno in Kwale Town in Ndo Kwa West Local Government Area of Delta State by virtue of native law and custom. This assertion was supported by the affidavit of one Chief Edwin Nzele sworn on 12th March 2003 describing the allege ceremony on 22nd December 1993 as he witnessed it.
(8) The claimant avers as follows:
(a) There was no ceremony whatsoever involving the claimant and the 1st Defendant on 22nd December 1993.
(b) Even assuming there was such a ceremony (which is denied) by virtue of the account given of the allege ceremony by an allege witness such ceremony did not create a valid Customary Marriage since, on the account given, it was not performed in accordance with Ukwani native law and custom (the customary law that applies to the 1st Defendant).
(c) Even assuming such a ceremony took place and was performed in accordance with Ukwani native law and custom (both of which are denied) by virtue of the claimant’s pre-existing and subsisting statutory marriage with the 2nd Defendant on 21st December 1974, such ceremony was not only void, but is of no legal effect whatsoever and was incapable of attracting neither a decree of divorce nor a decree of nullity.
(9) On 29th June 2004 the 1st Defendant amended her petition in case No.FD03D02234 stated above and alleged that, in the alternative, the claimant was married to her by repute and cohabitation. She further asserted that the claimant’s marriage to the 2nd Defendant on 21st December 1974 is not a valid statutory marriage but that if however the said marriage was established to be a statutory marriage the 1st Defendant would in the alternative seek a decree of nullity.
(10) The claimant avers as follows:
(a) The claimant has never cohabited with the 1st Defendant or held her out as his wife.
(b) Even assuming that the claimant had cohabited with the 1st Defendant and had held her out as his wife (both of which are denied) by virtue of the pre-existing and subsisting statutory marriage with the 2nd Defendant on 21st December 1974, a marriage by repute and cohabitation between the claimant and the 1st Defendant is incapable of being presumed.
(11) While the suit in paragraph 9 above was still pending on the 29th June 2004, the 1st Defendant presented a second divorce petition against the claimant in case No. FD04D05733 in the family Division of the High Court of Justice in London seeking dissolution of what the 1st Defendant alleged was a Customary marriage contracted between herself and the claimant on 16th March 2002 at Ogbe-Asaba Street, Utagba-Uno in Kwale Town in Ndokwa West Local Government Area of Delta State.
(12) The claimant avers as follows:-
(a) There was no marriage ceremony involving the claimant and the 1st Defendant on 16th March, 2002.
(b) Even assuming that there was such a ceremony which is denied, the said ceremony did not comply with Ukwani native law and custom therefore it cannot create a valid customary marriage.
(c) The ceremony which took place between the claimant and the 1st Defendant on 16th March 2002 was a ceremony understood by the parties as necessary for the claimant to be acknowledged by the 1st Defendant’s family as the father of the 1st Defendant’s children. The 1st Defendant and her parents induced and pressurized the claimant into participating in the ceremony upon their assurances that it was very necessary to protect theirs and the children’s dignity in their locality and that it created no marriage. It was never intended to create a marriage. There was no requisite mens rea.
(d) Even assumming there was a marriage ceremony on 16th March 2002 which was performed in accordance with Ukwani native law and custom which is denied because of the claimant’s pre-existing and subsisting statutory marriage with the 2nd Defendant the ceremony of 16th March 2002 is not only void, but of no legal affect whatsoever and cannot be the subject of a decree of divorce or nullity.
(13) At different stages the claimant filed applications for stay of the divorce petitions (cases Numbers FD04D05733 and FD03D02234) on the ground that Nigeria is the more appropriate forum that should determine the status of all the parties to this action as the issues involved interpretation of Nigerian law and the facts are such that they should be resolved by a Nigerian Judge.
(14) The claimant’s two applications for stay of the 1st Defendant’s English divorce proceedings (case Numbers FD03D02234 and FD04D05733) were heard together in the family Division of the High Court of Justice in London by Hon. Justice Charles in November and December 2004. On 9th March 2005, Hon. Justice Charles handed down his judgment and made orders inter alia staying the 1st Defendant’s English divorce proceedings (case No.FD03D02234 & FD04D05733).
(15) The English proceedings were stayed in favour of this action and case number M/341/04 commenced by the 2nd Defendant seeking essentially the same relief. The order of Hon. Justice Charles of 9th March 2005 is intended (so far as possible) to encourage the expeditious determination in Nigeria of all issues relating to the personal status and/or the dissolution or annulment of any marriage or purported marriage between the claimant and the 1st Defendant on the one hand and between the claimant and the 2nd Defendant on the other hand.
The Appellant (then claimant) filed the petition at the lower court. The petition went through the trial. After the addresses, judgment was delivered. The Appellant was aggrieved by the whole judgment, hence he appealed to this court.
From the Notice of Appeal dated 12th of May 2008, containing six (6) grounds of appeal, the Appellant distilled the following three issues for determination as follows:-
(1) Whether the judge ought to have held and/or made a Declaration that prior to December 1993 the Respondent was aware of the statutory nature of the subsisting marriage between the Appellant and a 3rd party.
(2) Whether the trial judge was right to have held and declared that a celebration of marriage under the Lekwuani Custom took place between the parties on 16th March 2002 and that the Appellant intended to enter into the marriage.
(3) Whether assuming that the parties entered into Customary Marriage on 16th March 2002 and that the Appellant so intended (both of which are denied) what is the legal status of that ceremony.
In arguing the first issue, learned counsel to the Appellant submitted that, the Appellant gave evidence in support of his assertion that the Respondent knew of the statutory nature of the Grace marriage – prior to 1st December 1993. The Respondent refused to give evidence under oath in support of the relevant assertion in her Defence and Counter Claim. The Appellant’s assertion on this issue ought to have been accepted by the Court as it is unchanged by the Respondent. Martchem Ind. Nig. Ltd v. M. F. Kent (W.A) Ltd {2005} 5 SC (pt.138; Nkuma v. Odili (2006) 2 – 3 SC 55; Adepole v. Saidi (1956) 1 FTC 79 at 80; Huteliful v. Biney (1971) 1 All NLR 258.
On the second issue, it was submitted that the trial court held in error that a ceremony of marriage took place between the parties in March 2002 and that the Appellant intended to contract the marriage. However in the face of the pleadings and the evidence, it was not open to the learned judge to as hold. Abubakar & Anor v. Joseph & Anor (2008) 5-6 SC (Pt 11) 196-197; George v. Dominion Flour Mills Ltd. (1953) 1 SC LNR 177; Emegokwue v. Okadigbo (1973) 4 SC 113; (1973) 4 SC (Reprint) 78; Orizu v. Anyaegbunam (1978) 5 SC 1; (1978) 5 SC 21; Total (Nig) Ltd v. Nwako (1978) 5 SC 1; Chief Ibang & Ors v. Chief Usanga & Ors. (1982)5 SC 103 at 124 and 125.
It is further submitted that the Declaration that a customary marriage took place between the Appellant and the Respondent on 16th March 2002 and that the Appellant intended to enter into such marriage were not sought by the Respondent, who sought a declaration that is wholly contrary to what the learned trial judge granted.
The general rule is that no court is permitted to make a case not made by the parties. Okwejiminor v. Gbakeji & Anor (2008) 1 SC (Pt.III) 316; Incar Nig. Ltd v. Benson Transport Ltd (1975) 3 SC; African Continental Seraways Ltd v. Nigerian Dredging Roads and General Works Ltd (1977) 5 SC 235 at pp.245-250.
On the third issue, it was submitted that the pleadings and admissible evidence at the trial shows that the parties agreed that at the material time, the Appellant’s statutory marriage to Grace Taiga which was entered into in 1972 was subsisting. In the circumstances therefore, the Appellant could not possibly contract a valid customary marriage with the Respondent. If any ceremony of marriage which the parties intended to create a marriage took place, that ceremony would give rise to a null or void marriage. Simply there would be no marriage between the parties. They would require no Decree or a Declaration of nullity as they have never been married. Section 33, 34, 35, of the Marriage Act Chapter 218 Laws of the Federation 1990.
The Respondent/Cross Appellant in her brief of Argument adopted all the three issues formulated by the Appellant in this brief of argument but with slight – amendment and in the following order of arrangement, namely:-
(i) Whether the learned trial judge was right to have held and declared that a celebration of marriage under the Ukwuani Custom took place between the parties on 16th March, 2002 and that the Appellant intended to enter into marriage.
(ii) If the answer to issue (i) above is in the affirmative, then what is the Legal Status of that ceremony and was the lower court competent to have made a declaration proclaiming or affirming that status?
(iii) Having regard to the pronouncement already made by the lower court that by reason of the subsisting statutory marriage between the claimant and the 2nd Defendant, any purported customary marriage between the claimant and the Defendant amounts to a nullity then whether it was still necessary for the learned trial judge to have considered the question whether or not the Defendant was aware prior to December 1993, of the statutory nature of claimant’s subsisting marriage.
In arguing the first issue, learned counsel to the Respondent/Cross Appellant submitted that the thrust of the claimant’s appeal here lies in his challenge of the specific finding of the lower court to the effect that a Customary Marriage was celebrated between the claimant and the Defendant on 16th March, 2002. Clearly, this is a finding of fact and it is settled law that an appellate court will not, as a general rule, interfere with such findings unless they are shown to be perverse or patently erroneous. Nsirim v. Nsirim (2002) FWLR (pt.96) 433; Seatrade Groningen B.V. V. Awolaja (2002) FWLR (pt.93) 2000.
It is submitted further that the trial court having properly directed itself to the questions and issues at stake and following a painstaking and meticulous review/evaluation of the evidence before it, the court came to the conclusion that the evidence of the claimant and his witnesses particularly those of his expert witnesses (cw9 & cw12) utterly lacked credibility.
The claimant did not file any ground of appeal showing in this court which is one of the essential ingredients of a valid customary -marriage held by the Lower Court to be present in that ceremony that was infact, not present. Biariko v. Edeh – Ogwinle (2001) FWLR (pt.51) 1849 at 1872; Odiase v. Agho (1972) 1 All NLR 170.
On the second issue, learned counsel to the Respondent submitted that the extent that the claimant by reason of his subsisting previous marriage to the 2nd Defendant could not have validly contracted any form of marriage with another person; the parties herein are on common ground. Indeed, the Defendant in her counterclaim sought the invalidation of her customary marriage with the claimant on that basis. The trial court also came to the same conclusion. Further that the customary marriage between the parties is invalid, is not indispute what the claimant apparently challenges, is the competence of the court to have made a declaration regarding the void status of that marriage. The said challenge is both baseless and misconceived. The trial court interpretation of section 35 of the marriage Act (supra) declaring the subsequent customary marriage null and void is the correct position of the law and the court is quite competent to make such a declaration. Meaning or purport of a declaratory judgment or relief Black’s Law Dictionary (Fifth Edition) at page 368. Utih v. Onoyivwe (1991) 22 N.S.C.C (Pt.1) 42 at 99: Ogunlade v. Adeleye (1992) 23 N.S.C.C (Pt.3) 196 at 201.
On the second issue, it was further submitted that a declaration is in effect nothing more complicated than the judicial proclamation or acclamation of a Legal status, based on the evidence and applicable law. Marriage is a matter of “Status”.
Consequently the marriage status of a couple is a legal relationship perfectly will in the province of a court to determine in terms of its validity or otherwise and to make a pronouncement by way of a declaration or declaratory judgment. The lower court was therefore competent to have a declaration as to rule status of the purported customary Marriage contracted between the parties.
On the third issue, it was submitted that once the trial court found as it did that the customary marriage between the parties was rendered null and void by reason of the claimant’s existing statutory marriage, the question became academic and it was no longer incumbent on the court to determine the state of the Defendant’s knowledge. The court is under a duty to decline to do so. Bamaiyi v. Attorney General of the Federation & Ors. (2001) FWIR (Pt.64) 202 at 370; Fatunbi v. Olanloye (2004) All FWLR (Pt.225) 150; Plateau State v. Att. Gen. of the Fed. & Anor (2006) All FWLR (Pt.305) 590.
Finally, it was submitted that the court should resolve all the three issues against the Appellant and in favour of the Respondent.
In response to the Respondent’s arguments, the Appellant filed a reply brief on the 21/7/09 and contended that all the submissions confirmed in all of paragraph 5 of the respondent’s brief are misconceived. The Appellant maintains that based on the pleaded cases of the parties, it was not open to the learned trial judge to make finding that a marriage took place between the parties on 16th March 2002. The video evidence and evidence of previous proceedings relied upon by the learned trial judge were irrelevant and not admissible for the purpose determining the relevant question. This submission is supported by the decided cases already cited in the Appellant’s brief.
It was further submitted that the failure by the Respondent to plead that a marriage took place between the parties on 16th March 2002 is fatal to the learned trial judge findings on the issue, and by evidence given by the Defence witness or tendered from the Bar which is at variance with the Respondent’s pleading (Defence and counterclaim) ought to have been disregarded by the learned trial judge.
It was further submitted that from the relief sought by the Respondent in her counter-claim that what the Respondent was asserting (pleaded) was that a marriage took place between the parties on 22nd December 1993, and what happened on 16th March 2002 was not a spate marriage but a celebration of her marriage that allegedly took place on 22nd December 1993.
Further it was submitted that the submissions – contained in paragraph 6 of the Respondent’s brief are wrong and misconceived. Section 35 of the Marriage Act clearly states that a customary marriage to a third party by a person who has a subsisting prior statutory marriage is invalid. That Section 35 of the Act deliberately avoided the use of words such as void and null. Null or Void marriages have legal effect as in some cases ancillary relief will be available.
On the other hand, a ceremony which does not create a valid customary marriage has no legal effect. It is a non-marriage and should not be a subject of a nullity order or declaration. The persuasive English authority of Gandahi v. Patel Nentral Citation Number. (2001) EWHC Ch.473 (2002) 1 FLR 603.
The use of the words null and void by the trial judge should not be construed to mean that the parties were ever married under the Nigerian Law.
It was further argued that the submissions contained in paragraph 7 of the Respondent’s brief are misconceived. The Appellant specifically asked question relating to and sought a Declaration on the knowledge of the Respondent that the Appellant had a subsisting statutory marriage.
This was in view of the fact that the parties will return to the English High Court to determine the issue of Ancillary Relief and if the Respondent is entitled to Ancillary Relief in England, her knowledge of the Appellant’s prior subsisting marriage and the fact that she is a qualified Lawyer in Nigeria will substantially reduce any ancillary relief she may be awarded. The issue is not academic as the Respondent did not join issue with the Appellant on it. The Court ought to have answered the Appellant’s relevant question in his favour and ought to have proceeded to make the relevant Declaration.
It was further submitted that having made a finding of fact that, no marriage took place in December 1993 it was open to the Court to grant counter claim. It does not matter whether the Appellant was already statutorily married to a 3rd party once it had been found that no marriage ceremony took place between the parties as averred by the Respondent.
It was further submitted that a mere celebration or party (as admitted by Dasi) not being a marriage cannot be declared null and void. Even if the celebration amounted to a Customary Marriage which is denied, it is invalid and has no legal effect by virtue of section 35 of the marriage Act.
Finally, it was prayed that this court should allow the Appeal and make appropriate orders.
Looking at the issues formulated by the parties in this appeal they are substantially identical. The Appellant and the Respondent in their respective briefs of arguments raised three issues each, which becomes conterminous in all respect they raised the same question as to the validity of the declarations and findings of fact made by the learned trial judge.
The two sets of issues emanated from the grounds of appeal and the judgment in this matter; that being the case I have opted to be guided by the issues as raised by the Appellants.
This court after a very careful examination of the processes filed on either side, the issues one and two of the Appellant and issues one and two of the Respondent’s brief of arguments can be conveniently determine together, as each had sought from the court a declaratory relief, borne out of the declaratory orders made by the trial judge. The Appellant’s contention in his issue one is that the trial court ought not to have held and/or made a declaration that prior to December 1993, the Respondent was aware of the statutory nature of subsisting marriage between the Appellant and a 3rd party. According to the appellant this was an assertion which he gave evidence in support of.
The Respondent refused to give evidence under Oath in support of the relevant assertion in her Defence and Counter Claim. What the learned trial judge ought to have done according to the Appellant was to take that the Respondent either abandoned her challenge on this issue or conceded the fact/issue. Alternatively, the learned judge should have drawn an adverse inference against the Respondent from her refusal/failure to give evidence. The Respondent at page 13 of her brief of argument paragraph 6.1 arguing issue two stated that to the extent that the claimant by reason of his subsisting previous marriage to the 2nd Defendant could not have validly contracted any form of marriage with another person, the parties herein are on common ground. The issue here is where there is a common ground on an issue would evidence of the Respondent be necessary again confronted with all the processes before it, would the court (the trial court) fail to make a declaration on the issue when invited to do so by the Appellant himself in his brief, simply became the Respondent’s failure to give evidence or a response to that assertion. To impose such a restriction on the court as the Appellant’s issue one seem to suggest is to curtail the powers of the courts provided to it for the administration of justice by the constitution of the Federal Republic of Nigeria 1999. The constitution provides under section 6 (6) (b) as follows:-
(6) “The judicial powers vested in accordance with the foregoing provisions of this section:-
(b) Shall extend to all matters between persons or between government or authority and to any person in Nigeria and to all actions and proceedings relating thereto, to the determination of any question as to the civil rights and obligations of that person”.
In giving effect to the said provision above the Supreme Court in the case of Dr. Taiwo Oloruntoba-Oju & Ors v. Prof P. A. Dopemu & Ors (2008) 7 NWLR (Pt.1085) 1 at 35 paras C-D stated:
“A High Court or any Court of record has the jurisdiction under the 1999 constitution to declare what the Law is when invited by process of litigation. But where the constitution the ground norm of the Land, had declared that a court cannot exercise jurisdiction over a matter any provision to the contrary is null and void and of no effect See:- Utih v. Omoyiuwe (1991) 1 NWLR (Pt.166) 166”.
Since it was the Appellant who raised the assertion that the Respondent prior to December 1993, the Respondent was aware of the statutory nature of the subsisting marriage between the Appellant and a 3rd party and gave evidence in support of his assertion, regardless of whether the Respondent gave evidence under oath in support of the assertion in her defence and Counter Claim, the trial Court had the constitutional power having been invited in the first place by the Appellant himself to declare that the Respondent was aware of the subsisting statutory marriage of Appellant and a 3rd party prior to December 1993. The trial court exercised its constitutional power here rightly and this court did not find any basis for the challenge of the exercise of that right by the Appellant in his issue one. The Appellant issue two is resolved against the Appellant and in favour of the Respondent.
The issue two of the Appellant’s brief of argument which the Respondent sub-divided as her issues one and two are both anchored on the averment of the Respondent and defendant in her statement of claim and Counter claim, to the effect that the Appellant and the Respondent were married in December 1993 and celebrated that marriage by having a party on 16th March 2002. Accordingly the Respondent did not plead a marriage on 16th March 2002. However the trial Court went outside the pleading to declare that a ceremony of marriage took place between the parties in March 2002, and that the Appellant intended to contract the marriage.
This was outside the parties’ admissible evidence and pleadings. The Respondent maintained despite her pleading on the issue, there is no ground of appeal contending that the trial judge either misdirected herself or in some way erred with those questions with which she guided her attention to the relevant issues or matters to be resolved. The Appellant in his reply brief filed on the 21/7/09 maintained that the trial court misdirected itself to make the finding that a marriage took place between the parties on 16th March 2002. The video evidence and evidence of previous proceedings relied upon by the learned trial judge were irrelevant and not admissible for the purpose of determining the relevant question.
The most pertinent question to determine here is whether the Appellant’s contention on the misdirection of the trial court making a declaration outside the pleadings of the parties that a marriage took place between the parties on 16th March 2002, had emanated from the grounds of appeal, the Respondent contend that the issue two of the Appellant did emanated from any of his grounds of appeal.
This court examined the Notice of Appeal of the Appellant dated 12th of May 2008, settled by Abayomi Osibanjo Esq. of counsel, particularly ground 3 thereof, wherein it was contended that:-
“The learned trial judge erred by making a finding of fact that the Appellant intended to and did contracted a customary marriage with the Respondent on the 16th March 2002 and that the marriage was performed in accordance with the Ukwuani native law and custom”.
From the above therefore, there is no doubt the Appellant’s issue two emanated from ground 3 of the Notice of Appeal. Failure to marry the issue to the ground it is trite, amounts to a case of bad drafting, but this does not disqualify the issue. Since we have crossed the hurdle of the issue emanating from the ground of appeal, can the trial judge be permitted to make a declaration outside the pleadings of the parties? This court will repeat for clarity the pleading of the Respondent in her Statement of Defence and Counter Claim that they were married in December 1993 and celebrated the marriage by having a party on 16th March 2002. No doubt the finding of fact by the learned trial judge and the subsequent declaration by the court that a celebration of marriage under the Ukwuani Custom took place between the parties on 16th March 2002 and that the Appellant intended to enter into the marriage is outside the pleading of Respondent. The finding of the trial court is also outside the Statement of Claim of the Appellant who averred that no marriage ceremony took place between the parties on 16th March 2002.
This court finds that the fact and the subsequent declaration by the trial court of marriage ceremony by the parties on the 16th of March 2002, clearly outside the pleadings of the parties. The essence of pleadings is defined by the Supreme Court in the case of Abubakar & Anor. Joseph & Anor (2008) 5 – 6 SC (Pt.II) 196-197. The apex court stated:-
“It is firmly established that the essence of pleadings is to compel the parties to define accurately and precisely, the issue upon which the case is to be contested. This is in order to avoid any element of surprise by either party. It is not to adduce evidence which goes outside the facts pleaded. See: – the case of George v. Dominion Flour Mills Ltd (1963) 1 SC LRN 177; Emegokwue v. Okadigbo (1973) 4 SC 113; (1973) 4 SC 27; Total (Nig) Ltd v. Nwako (1978) 5 SC 1:% S.C (Reprint) 1 and Chief Ibanga & ors v. Chief Usanga & ors (1982) 5 SC 103 at 124 & 125; (1982) 5 SC (Reprint) 49; (1982) 1 ANLR 88 at 99 and many others”.
Having established that the trial court’s findings of facts and declaration subsequently made outside the pleadings of the parties, this court is permitted by law to disturb such findings by the trial court.
The law is settled on the instance where appellate court will disturb concurrent findings of facts by the lower court, only where such findings are improper or perverse having regard to the evidence.
Ogbero Egri v. Edo Uperi (1974) 1 NWLR 22; Amusa Opoola Adio & Anor v. The State (1986) 2 NWLR (Pt. 241 581; Woluchem v. Gudi (1981) 5 SC 291; Oguanzee v. State (1998) 5 NWLR (Pt.551) 521 at 580.
The finding of the trial court which held and declared that a celebration of marriage under Ukwuani Custom took place between the parties on 16th March 2002 and that the Appellant intended to enter into the marriage as improper. This court has resolved the Appellant’s issue two in favour of the Appellant and against the Respondent.
On the third issue, the Appellant’s brief of argument to wit: the fact of whether assuming that the parties entered into a customary marriage on 16th March 2002 and that the Appellant so intended (both of which are derived) what is the legal status of that marriage. The Respondent in issue three also made a poser to the effect of having regard to the pronouncement already made by the lower court that by reason of the subsisting statutory, marriage between the Claimant and 2nd Defendant any purported customary marriage between the claimant and the Defendant amounts to nullity. Then whether it was still necessary for the learned trial judge to have considered the question whether or not the Defendant was aware prior to December 1993, of the statutory nature of Claimant’s subsisting marriage.
The position of the Appellant and the Respondent in respect of issue three has brought its determination to a narrow margin.
The pleadings and admissible evidence at trial shows that the parties agreed that at the material time the Appellant’s statutory marriage to Grace Taiga which was entered into in 1972 subsisting that the Appellant could not possibly contract a valid Customary Marriage with the Respondent. If any ceremony of marriage which the parties intended to create a marriage took place, that ceremony would amount to no marriage between the parties. This is a fact admitted by both the Appellant and the Respondent, it is trite law that facts admitted as to existence of an issue or state of thing no further proof of their existence, will further be required for their determination with the appeal. Hauwa Ubudu v. Bulama Abdul-Razak (2001) 7 NWLR (Pt.713) 669; N.I.D.B. v. Olalomi Industries Ltd (2002) 28 WRN 66; Mohammed Sani Abacha v. The State (2002) 9 MJ SC 1; A.G Fed. V. A. G. Abia State (2002) NSCQR 153.
The next leg of issue three is whether the trial court can make a declaration on the legal status of that ceremony mutually agreed to be non-existing. The Supreme Court with case of Dr. Taiwo Oloruntoba – Oju & Ors v. Prof. P. A. Dopamu & Ors (2008) 7 NWLR (Pt.1085) 1 at 35 paragraphs A – B stated:-
“When a litigant claims declaratory relief, he does no more than to invite the court to declare what the law is on the issue. Whatever the Court of Law may say in acceding to that invitation is not executor, indeed the grant of such a relief is discretionary therefore, a plaintiff who from a declaratory judgment or order in his favour must in addition seek injunctive order or damages”.
From the record at page 723 in answer to make a declaration, having critically reviewed the case, the learned trial judge came to the following conclusion inter alia:-
“In view of the Claimant’s statutory marriage to the 2nd Defendant, the Claimant is incapable of contracting a valid customary marriage with any other person during the subsistence of his statutory marriage”.
It is wrong on the part of the Appellant to suggest that the Court cannot make such a declaration when invited to do so. The position is made very clear by the Supreme Court in Oloruntoba’s case (supra). Again in view of the declaration made by the Court on legal status of the customary marriage, the question of prior knowledge of the existence of the statutory marriage before December 1993 by the Respondent becomes only academic or hypothetical.
On the whole therefore, the Law allows the Court to make a declaration on the invitation of the parties in their processes before it, and it correctly exercised that. It was simply declaratory. Issue three resolved against the Appellant.
In the final analysis, this appeal succeeds in part in relation to issue two of the Appellant’s brief. The judgment of Oyefeso J. of the Lagos High Court, Ikeja Judicial Division, delivered on the 11th day of April, 2008 in Suit No. M/238/05, the following constitute the outcome of the Appeal:
(1) The declaration made by the trial court with respect to issue two of the Appellant’s brief of argument is hereby set aside by this court.
(2) The declaration made with respect of issues one and three of the brief of argument of the Appellant by the trial court, are hereby affirmed by this Court.
(3) No order as to costs.
CROSS – APPEAL
For the purposes of the cross-appeal, the Respondent/Cross-Appellant adopts and rely on paragraphs 1-3 in their entirety of the Respondent’s brief in respect of the main appeal. The Cross-Appellant has formulated the following issues for determination, viz:-
(i) Whether the lower court was correct in its finding that the Defendant had failed to establish that a customary law marriage was celebrated between her and the Claimant on 22nd December, 1993.
(ii) Whether after having found that the Claimant had held the Defendant out as his wife, the learned trial judge was right when she failed to hold that the couple cohabited together as husband and wife, or declined to presume a marriage by repute and cohabitation between them.
“In arguing the first issue of the Cross-Appeal, learned counsel to the Respondent/Cross-Appellant submitted that the law is very well settled that an appellate court will as a general rule not ordinary interfere with the findings and conclusions of lower court. In exceptional circumstances however the appellate court will interfere. Ibhafidon V. Igbinosun (2001) FWLR (Pt. 49) 7436; Abimbola v. Abatan (2001) FWLR (pt. 46) 989 at 7007. The instant appeal presents an appropriate occasion for this court to interfere with the findings and conclusions of the lower court in question on this cross-appeal.
It is submitted that the trial court found inconsistencies in evidence of DW which did not touch upon the key material question of how essential requirements of a customary marriage were satisfied on 22nd December, 1993. Those inconsistencies were in the circumstance minor and not material and ought to have been treated as being fatal to the Defendant’s claim in this regard; rather what should have been germane was the overall quality of DW’s testimony.
It is further submitted that the learned trial judge having failed to give consideration to this crucial principle of law and erroneously treated otherwise minor details as being fatal to the Defendant’s case.
It is submitted further that this court is entitled to interfere with the findings of the trial court. And since as stated before the testimony of DW as to the essential requirements of customary marriage under Ukwuani native law and custom and as the fact of the satisfaction of those ingredients on 22nd December, 1993, this court is entitled to return a finding that the parties were married under customary law on that date.
On the second issue to wit: whether after having found that the Claimant had held the Defendant out as his wife, the learned trial judge was right when she failed to hold that the couple cohabited together as husband and wife, or declined to presume a marriage by repute and cohabitation between them, there was nothing that stopped the lower court on the basis of its clear findings from presuming the marriage and then pronouncing or declaring it void.
It is submitted further that, the Defendant’s case was always that she was married to the Claimant under customary law. Incidentally at least four of the love cards (Exhibits N4 – N7) sent by the Claimant to the Defendant in which he addressed her as his wife/love were sent by him in 2000 (two years before the event of 2000) lending credence to the fact that the Claimant had always seen and held out the Defendant as his wife even though he was previously married.
It is further submitted that the motion of cohabitation under customary law is different from that of a statutory marriage. Spouses in a customary marriage are equally entitled to each other’s cohabitation but as the kind of marriage is potentially polygamous in nature, cohabitation does not necessarily imply that husband and wife must live together under the same roof, as a man may have other wives who may live separately from him but are equally entitled to his consortium. What cohabitation implies in such circumstances is a state of things and what is required of the man is provision of reasonable accommodation for the wife as well as that he caters for her needs. “Family Law in Nigeria” (Revised Edition page 101 by E.I. Nwogugu).
It is further submitted that the circumstances of the parties in this case, with the Claimant providing expensive accommodation for the Defendant, so that even if as indicated by the court below that the testimony of DW on the question whether the couple actually lived in the same house was not convincing enough, it would still not imply that there was no cohabitation between them. The learned trial judge was therefore wrong to have treated the notion of cohabitation as if it required of parties to physically live in the same house together. This court is urged to interfere. Court is urged to answer issue two in the negative.
The Cross-Respondent in reply agreed with the submission of the Cross – Appellant that it is settled law that an appellate court will not likely interfere with the findings of fact of a trial court unless is perverse.
It is submitted that the trial judge was correct to make the findings complained of that she heard oral evidence and adjudged the demeanor of the witnesses. She evaluated all the evidence correctly before reaching her conclusions.
It was further submitted that the issue before the learned judge was whether a customary law marriage was celebrated by the Respondent/Cross Appellant and the Appellant/Cross Respondent on 22nd December 1993. In other words, did the event take place? The Cross Appellant/Respondent argued that the ceremony took place. The trial judge had to first determine whether the ceremony took place. If the event took place, then the learned judge would have proceeded to determine other questions of the validity of the relationship created by that event. Once it was decided that no event took place on that date, it was unnecessary to go further. The findings of fact by the learned trial judge on this issue are unassailable and no reasonable complaint can be made on them. The court is urged to resolve issue one on the affirmative.
On the second issue, it was submitted that the learned trial judge quite rightly made a finding of fact that the parties did not cohabit. The court did not find the only defence witness credible on the issue of cohabitation and gave reasons for the decision. The trial court was entitled to the assessment of the credibility of the witness and the Defence case was put on the basis of actual physical cohabitation by the parties. In his evidence DW1 says that the parties were living together. However he was found to have been evasive and his evidence found by the court not cogent. No criticism of this finding can be sustained.
It is further submitted that by virtue of the provisions of Section 35 of the Marriage Act, it is impossible to presume that a person who has a prior subsisting statutory marriage to a third party at the relevant time was later married to another person under native law and custom while the earlier statutory marriage was subsisting. It was common ground between the parties that the Appellant/Cross-Respondent had a statutory marriage to Grace Taiga on 21st December 1974. The marriage was subsisting on the date of the judgment and there was no evidence before the court that the Cross-Appellant/Respondent and the Appellant/Cross Respondent were in any form of relationship before 21st December 1974. The Cross-Appellant did not pursue or plead a claim for marriage by repute and cohabitation in her counter claim. This court is urged to answer issue two in the affirmative, and to dismiss the Cross-appeal.
This court will begin with the reply to the Cross-Appellant’s issue two, the Cross Respondent averred that the Cross-Appellant cannot in her Cross-Appeal pursue a claim for marriage by repute and cohabitation, since she failed to plead that claim in her counter claim to the main appeal. This submission of the Cross Respondent is a misconception of what a Cross-Appeal is in law. The law is that a Cross-appeal is similar or akin to a Counter Claim which is distinct from the main principal action. It is like manner a cross appeal is distinct from an appeal. Lewis Opara v. Dowel Schlumberger (Nig.) Ltd and Anor. (1995) 4 NWLR (Pt.390) 440 at 465; Ebe v. Nnamani (1997) 7 NWLR (Pt.513) 498; Igwe v. Kalu (2002) 14 NWLR (Pt.787) 435 at 454; Chief F. R. A. Williams v. Daily Times Nig. Ltd (1990) 1 NWLR (Pt.124) 1.
In view of the position of the law stated above, the Cross-Appellant properly raised the issue of marriage by repute and cohabitation in her Cross-appeal, even though she did not raised the same issues in her counter claim to the main appeal.
Now considering the issues raised in the counter claim, which was essentially the findings of facts by the trial court on:-
(1) That the defendant had failed to establish that a customary law marriage was celebrated between the claimants on 22nd December 1993.
(2) Also having found that the claimant had held the Defendant out as his wife, the learned trial judge was right when she failed to hold that the couple cohabited together as husband and wife or declined to presume a marriage by repute and cohabitation between them.
It is very clear that from the two issues, the cross-appellant had seeked for the intervention of this court on the findings of fact by the lower court. The attitude of the Appellate court to findings of facts by the Lower Court is one of reluctance to disturb. This is because the trial court enjoys the monopoly of listening to, seeing and observing the demeanor of witnesses, it has the peculiar advantage of assessing the oral evidence at first hand, its determination unless perverse and not flowing from such evidence are conclusive. The finding of fact are however not sacrosanct.
According to the cross-appellant the two reasons given by the learned trial judge in arriving at her finding to issue one are:-
(i) The uncorroborated evidence of DW was not sufficient to establish marriage thereby implying that corroboration in this instance is a legal requirement, and
(ii) The inconsistencies in DW’s recollection of events that took place in 1993.
In respect of the 1st finding the cross-appellant acceded that relying on the cited authorities the trial judge arrived at the correct conclusion, there is no law that requires corroboration of evidence of the person who gave away the woman in marriage or witnessed the ceremony or was sent to ask for the hand of the woman. The cross-appellant had sought refuge on the provisions of Section 179 (1) of the Evidence Act, which corroboration of witness do not include proof of customary marriage.
On the 2nd finding here again the cross-appellant admitted at page 7 of her brief of argument at paragraph 3.14 wherein she stated:-
“It is true that inconsistencies pointed by the learned trial judge existed in DW’s testimony. But this is understandable and only to be expected…”
Also at page 8 of the cross-appellant’s brief of argument, at paragraph 3.15 it is stated:-
“The law does not require that a witness’ testimony must be totally devoid any contradiction or inconsistency. On the contrary what the law stipulates is that only material contradictions will operate to damage a party’s case….”
Now looking at the findings of the trial court, where the cross-appellant in the first finding admitted that the trial judge arrived at a correct conclusion, but with some qualification on the 2nd finding, the cross-appellant admitted that there were inconsistencies in the evidence of her witness, but in her view, they were not material contradiction to sway away the trial court from acting on such evidence.
This court must restrict itself to its function as an appellate court. At this stage where the appeal involves question of fact it will not interfere unless it is shown that such decision is perverse or it is not the result of proper exercise of judicial discretion.
‘Perverse’ verdict is defined by the Black’s Law Dictionary Eight Edition as:-
“A jury verdict so contrary to the evidence that it justifies the granting of a new trial”
The same dictionary defines judicial discretion as:-
“The exercise of judgment by o judge or court based on what is fair under the circumstances and guided by the rules and principles of law, a courts power to ad or not acts when a litigant is not entitled to demand the act as a matter of right”.
In given effect to the above two definitions, the law is now settled in this country that, it is not the function of an appellate court to make findings of fact where this has been done by the trial court and to reopen the issues of fact finally determined by the trial court, even if it would have come to a different finding if it were to do so. Nwosu v. Board of Custom & Excise (1988) 5 NWLR (Pt.93) 225; Egona v. Egona (1978) 11 – 72 SC. 111.
The law here is that the cross-appellant must show perversity and improper use of discretion by the trial court. In the instant appeal instead of the cross-appellant to largely agree with the findings of the trial court, even with the qualification, which this court is certain, based on the arguments placed before it, has not eroded the credibility of findings of fact by the trial court she did not. The position of this court is that those findings of the trial court have not been proved to be perverse or amounted to an abuse of judicial discretion; this court will not therefore disturb those findings. This court found strength on this position from some decided authorities: – Nrian v. Akpan (1910) 3 NLR 70; Kodilinye v. Odu (1935) 2 W.A.C.A 336; Okoye v. Ejiofor (1934) 2 W.A.C.A. Aboshin v. Ugoh (1993) 2 NWLR (Pt.278) 752; Agboniju v. Aiweroba (1988) 1 NWLR (Pt.70) 325; Ojo v. Philips (1999) 5 NWLR (Pt.296) 757 at 768.
On the whole therefore this court is satisfied that there is no merit in the argument proffered by the cross-appellant on the first issue and the court has resolved that issue against the cross Appellant and in favour of the cross Respondent.
On the second issue of the cross-Appellant’s brief of argument, the trial court having found that the claimant had held the Defendant out as his wife, the learned trial judge was right when she failed to hold that the couple cohabited together as husband and wife or declined to presume a marriage by repute and cohabitation between them.
This court will only say the cross-appellants’ argument here does not have a leg to stand upon, Section 35 of the marriage Act which is the existing Law in this country made it impossible to presume that a person who has a prior subsisting statutory marriage to a third party at the relevant time, exactly as the case with the present appeal, and to later engage marriage to another person, under native law and custom while the earlier statutory marriage was subsisting. At the time the cross-appellant was demanding of the trial court to make a presumption of her customary marriage by repute or cohabitation, she did admitted, or never contested her knowledge of the subsistence of the statutory marriage between the Cross respondent and one Grace Taiga (Mrs.), which was contracted on the 21st December 1974. What the cross-appellant is asking the trial court to do in arguing this issue is to proceed on an illegality to make a pronouncement on an issue clearly contrary to the existing law of this court. If the trial court had got persuaded and made such a pronouncement it would have amounted to an ultra vires declaration and therefore would be null and void in law. This court finds the cross-appellant’s argument on issue two devoid of any merit, and in consequence has resolved issue two against the cross-appellant and in favour of the Cross-Respondent.
In the final analysis the entire cross appeal is devoid of any merit, and it is hereby dismissed by this court. The judgment of Oyefeso J, sitting at the High Court of Lagos State in Ikeja delivered on 11th April 2008 in Suit No M/238/2005 in respect of the issues raised by the cross-appeal is hereby affirmed by this court.
JOHN INYANG OKORO, J.C.A: I was obliged a copy of the Judgment of my learned brother, Bage, JCA just delivered and I agree that there is merit in the main appeal and is hereby allowed by me in part. Also, the cross appeal is devoid of any merit at all and I agree that it be and is hereby dismissed. I adopt the reasons and conclusions made by my learned brother in both appeals as mine. I abide by all the consequential orders made in the lead Judgment.
R.N. PEMU, J.C.A: I had the privilege of reading in draft, before now, the Judgment of my brother Judge, Justice Sidi Dauda Bage JCA, and I agree with his reasoning and conclusions that the appeal succeeds and the Judgment of Oyefeso J. is hereby affirmed.
I also agree that the Cross – Appeal is devoid of merit and same is hereby dismissed.
Appearances
Dotun Oduwobi Esq.For Appellant
AND
Abayomi Osibanjo Esq.For Respondent
