MRS. EBELE ONYEJIAKA V. ACHAEGBUNA ONYEJIAKA & ORS
(2012)LCN/5587(CA)
In The Court of Appeal of Nigeria
On Thursday, the 19th day of July, 2012
CA/E/390/2007
RATIO
ACTION: WHO NOMINATES THE ISSUES FOR RESOLUTION
The law is settled that it is the plaintiff who has brought an action that nominates the issues for resolution in the case. PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
ACTION: POSITION OF A DEFENDANT IN A COUNTER-CLAIM
It is also the position of law that the defendant in a counter-claim is akin to the plaintiff in the main case. PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
EVIDENCE: HOW CAN A PLAINTIFF SUCCEED IN HIS CASE
Again, it is the settled position of the law that a plaintiff can only succeed in his case on the pleading upon the strength of the same. PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
JUSTICES
ABUBAKAR JEGA ABDULKADIR Justice of The Court of Appeal of Nigeria
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
ADAMU JAURO Justice of The Court of Appeal of Nigeria
Between
MRS. EBELE ONYEJIAKA Appellant(s)
AND
1. ACHAEGBUNA ONYEJIAKA
2. NWANNEKA ONYEJIAKA
3. IFEANYI ONYEJIAKA
4. NKIRU UCHENDU (FORMERLY ONYEJIAKA)
5. CHIEF EMMA ECHETABU
6. PROBATE REGISTRAR ANAMBRA STATE
7. MISS CHISOM ONYEJIAKA (DEFENDING BY HER NEXT FRIEND, MADAM GOLD ONYEJIAKA) Respondent(s)
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Justice, Anambra State, Awka Judicial Division (hereafter simply referred to as “the lower court”), presided over by the Honourable Justice M.I. Onochie (hereafter simply referred to as “the learned trial Judge”) delivered on 2/11/2007 in Suit No: A/137/2006. In the judgment, the claims of the Plaintiff (hereafter simply referred to as “the Appellant”) were dismissed in their entirety; while the reliefs sought by the Defendants (hereafter referred to as “the Respondents”) in their counter-claim were granted in part.
Before the lower court, parties filed and exchanged pleadings. The 7th Defendant (hereafter simply referred to as “the 7th Respondent) was not a party in the case at its commencement. She was joined as a party in the case on 6/11/2006, pursuant to the order of the lower court that “she is to defend the action by her next of kin Madam Gold Onyejiaka”. The facts of the case as narrated by the Appellant is to the effect that late Barrister Ike Onyejiaka (hereafter simply referred to as “late Onyejiaka”) married the 4th Defendant (Nkiru Uchendu) (nee Onyejiaka) (hereafter to be referred to as “the 4th Respondent”) under the Marriage Act and the marriage was blessed with one issue, Ms. Chisom Onyejiaka, the 7th Defendant (hereafter to be referred to as “the 7th Respondent”). The marriage between late Onyejiaka and the 4th Respondent later broke down and late Onyejiaka filed a petition for the dissolution of the marriage at the High Court, Awka, which after hearing the petition issued an order nisi for the dissolution of the marriage between late Onyejiaka and the 4th Respondent. The 4th Respondent lodged an appeal against the order of dissolution of the marriage and while the appeal was still pending, late Onyejiaka married the Appellant under the Marriage Act. The appeal lodged by the 4tn Respondent was not disposed of before the date of death of late Onyejiaka. The lower court in its judgment held among others, that by reason of the fact that the appeal against the decree nisi was still pending when Onyejiaka died, the previous marriage he had with the 4th Respondent was still subsisting as at the time he died notwithstanding the order nisi. The Appellant instituted the instant case before the lower court against the Respondents (some of who are the siblings, former wife, and daughter of late Onyejiaka claiming against them jointly and severally, the reliefs set out in paragraph 27 of the statement of claim, namely:-
“a. A declaration that the plaintiff as the lawful wife of late Ike Onyejiaka is entitled to the Letters of Administration of the estate of the late Ike Onyejiaka.
b. An order of Court setting aside the sale of late Ike Onyejiaka’s land at Agu Oye Umudioka Village, Awka, measuring 2 plots.
c. An order of Court mandating the 5th defendant to return to the plaintiff the said two cars belonging to late Ike Onyejiaka now in his (5th Defendant’s) possession.
d. An order on the 6th defendant to issue Letters of Administration of late Ike Onyejiaka’s estate to the plaintiff and Sunday Onyejiaka.
e. Perpetual injunction restraining the 1st – 3rd Defendants from meddling in and selling late Ike Onyejiaka’s properties.”
In their Statement of Defence dated 14/10/2006 and filed on 19/10/2006 (and which contained a counter-claim), the Respondents resisted the case set up by the Appellant in the statement of claim and also counter-claimed against the Appellant for the following reliefs: –
“(a) Declaration that the 6th defendant, the probate Registrar, Awka High court, is entitled to issue Letter (sic) of Administration in respect of the estate of late Barr. Ike Onyejiaka to his only surviving issue, Miss Chisom Onyejiaka.
(b) Declaration that any Marriage certificate being paraded by the plaintiff in respect of her purported marriage to late Barr. Ike Onyejiaka is not authentic and or was obtained irregularly and therefore, null and void.
(c) Declaration that in marriage under the statute a party that wins at the High court is restrained from contacting another marriage during the pendency of an appeal over the verdict so that the eventual success of the appeal would not be rendered nugatory by the supervening subsequent marriage.
(d) Declaration that where a party to a Matrimonial suit in respect of marriage under the statute dies before the determination of the suit at the High Court or at the Appellate (sic) court, the surviving couple is taken as still the lawful wife or husband of the deceased.
(e) An order of Court setting aside the sale of any property of Late Barr. Ike Onyejiaka by the plaintiff.
(f) An order of court that the plaintiff should return to her father’s family and render to Miss Chisom Onyejiaka full and comprehensive account of all properties and moneys of late Barr Ike Onyejiaka in her custody.
(g) Perpetual injunction restraining the plaintiff, the agents, servants, siblings, privies, assigns and surrogates from further assaulting nor (sic) causing the defendants to be falsely imprisoned.
(h) N50,000,000.00 (Fifty million naira) being special and general damages for assault and false imprisonment of the 1st to 4th defendants.
OR IN THE ALTERNATIVE
Distribution of the estate of Late Barr. Ike Onyejiaka between the plaintiff if found to be lawful wife, and Miss Chisom Onyejiaka, at the ratio of thirty per cent to the plaintiff and seventy percent to Miss Chisom Onyejiaka who has lost her fatherly care, training, upbringing and maintenance.”
The Respondents agree with the facts of the case as narrated by the Appellant but went further to disclose that the Appellant did not file a defence to the counter-claim and also that the lower court ordered the Appellant to pay N10,000,00 to the 2nd and 3rd Respondents as general damages for assault and false imprisonment. Furthermore, that the Appellant was also restrained from further arresting and causing the aforementioned Respondents to be falsely imprisoned.
At the hearing of the case before the lower court, the Appellant testified in her own behalf and called no other witness; while the 2nd, 4th and 7th Respondents equally testified for themselves and called no witnesses. As already stated, the lower court dismissed the claims of the Appellant in their entirety and granted some of the reliefs the Respondents sought in their Counter-Claim.
The Appellant lodged an appeal against the judgment of the lower court by a Notice of Appeal dated 6/11/2007 and filed on the same date. The Notice of Appeal contains four grounds of appeal. The relief being sought from the Court as set out in the Notice of Appeal reads: “To allow the appeal, set aside the Judgment of the lower court and grant the reliefs sought by the Plaintiff/Appellant therein.”
In accordance with the relevant provisions of the Rules of this Court, parties duly filed and exchanged Briefs of Argument. Appellant’s Brief of Argument dated 16/3/2009 was filed on 17/3/2009, while Appellant’s Reply Brief dated 15/6/2011 was filed on the same date. Both Briefs were settled by Obumneme Okafor Esq, Respondents’ Brief of Argument dated 1/2/2010 and filed on 24/2/2012, but deemed as properly filed and served on 26/1/2011 was settled by Chief E.C Okechukwu. The appeal was entertained on 22/5/2012, and V.N. Asogwa (Mrs.) and Chief E.C. Okechukwu (both of counsel) adopted and relied on the Briefs of Argument filed on behalf of their respective clients as hereinbefore identified, in aid of their positions in the appeal.
The Appellant identified three issues for determination in the appeal, in her Brief of Argument, They read thus: –
“1. Whether it is in all cases that the pendency of an appeal against a decree nisi dissolving a marriage will result in the continued subsistence of the marriage notwithstanding the expiration of the statutory period of the order nisi.
2. Whether the subsequent marriage between late Barrister Ike Onyejiaka and the plaintiff/appellant celebrated well beyond the statutory period of the decree nisi was valid or not.
3. whether the trial court was right in finding the plaintiff liable for assault and false imprisonment on the ground that the 2nd and 3rd respondents were arrested by the police upon her complaint.”
It is revealed in the introductory part of the Respondents’ Brief of Argument that the said Brief was actually settled for and on behalf of the 1st – 5th and 7th Respondents. These Respondents in their said Brief expressly adopted the three issues identified for determination in the appeal by the Appellant as reproduced above. This being the situation, the appeal necessarily will be determined upon the issues identified by the Appellant as re-produced above.
ISSUE 1:
The Appellant disclosed in her Brief of Argument that this issue is distilled from grounds 1, 2 and 3 of the grounds of appeal, Dwelling on the issue, the Appellant submitted to the effect that the learned trial Judge was wrong in the conclusion he arrived at in the case that a party to a marriage celebrated under the Marriage Act cannot remarry until the order of decree nisi has become absolute, and that an order nisi shall not become absolute during the pendency of an appeal filed within 90 days from the date the decree nisi was issued, relying on the combined reading of sections 33 and 58 of the Matrimonial Causes Act (hereafter simply referred to as “MCA”).
The Appellant contended to the effect that the learned trial Judge was in serious error when he said that “That facts of the instant case appear to be on all fours with that in Amobi v. Nzegwu (supra)” and held that “since the plaintiff predicated her entitlement to the grant of Letters of Administration on the fact that she is the lawful wife of late Ike Onyejiaka and having held that the purported marriage between her and late Ike Onyejiaka was void, all her claims fail. They are accordingly dismissed.” The Appellant proceeded to distinguish the case of Amobi v. Nzegwu (2005) 12 NWLR (Pt. 938) 120, relied upon by the learned trial Judge in the light of the facts of the instant case. In this regard, the Appellant stated to the effect:-
(i) That there was no cross-petition for the nullity of the marriage between the parties in the Amobi case but there was a cross-petition by the 4th Respondent in the petition filed by Ike Onyejiaka. That the 4th Respondent in the cross-petition though not seeking for the dissolution of her marriage, sought for its nullification on the grounds that it was procured by fraud and that she and Ike Onyejiaka fell within the prohibited degree of consanguinity.
(ii) That in the Amobi case, there was no appeal against the order nisi but the only thing was that husband died before the order nisi could become absolute. That in the instant case, the three months period of the decree nisi had lapsed before the marriage between the Appellant and Ike Onyejiaka took place even though an appeal was filed before the expiration of the decree nisi.
(iii) In the instant case, the appeal filed by the 4th Respondent was not necessarily against the dissolution of the marriage, so as to restore the marriage and achieve its continuity but against the fact that her own cross-petition for the nullification of the marriage was not granted. In other words that what the 4th Respondent was seeking for via the appeal was not the sustenance of the marriage, but an order that the marriage be nullified to be as if it never ever took place or existed at all.
The Appellant submitted to the effect that based on the significant points of difference between the Amobi case and the instant case, the learned trial Judge ought not to have relied on the point of similarity only in arriving at his decision concerning the status of the marriage between her and late Onyejiaka. Though conceding that that Section 58(3) of the MCA, postpones, stays and alters the time within which a decree nisi should become absolute, when an appeal has been lodged against the order nisi, the Appellant submitted to the effect, that the effect of the section in staying or altering the time for the expiration of the decree nisi should depend on the objective or intended purpose of the appeal. That if the effect or objective of the appeal is to achieve the dissolution of the marriage even though on different grounds or on the cross-petition of an appellant, then it may be allowed to have the effect of the provision of the section. That where however as in the instant appeal, the cross-petition of the 4th Respondent was intended to achieve a nullification of the marriage between her and late Onyejiaka, and the appeal as disclosed from the notice and grounds of appeal (ground 5 and the particulars thereof) was in pursuance of the same objective, it would be “injustice” to insist on Section 58(3) of the MCA, to stay the crystallization or transformation of the decree nisi into a decree absolute. That where as in the instant appeal, the 4th Respondent, was actually pursuing the nullification of the marriage between her and late Onyejiaka, the decree nisi should not be prevented from becoming absolute by the mere fact that an appeal to achieve the nullification of the marriage had been lodged. In other words, that section 58(4) of the MCA, should not be called in aid to prevent the decree nisi from becoming absolute where either of the parties dies. Noting that in the case, it was established before the trial court that the marriage between her (Appellant) and late Onyejiaka took place after the expiration of the period of the decree nisi even though the 4th Respondent lodged her appeal about three days before the expiration of the period for lodging the appeal, the Appellant submitted that the section 58 of MCA did not apply in the instant case and cited in aid the case of Dejonwo v. Dejonwo (1993) 7 NWLR (Pt.306) 483 at 505. That it is obvious that the appeal lodged by the 4th Respondent against the judgment of Hon. Justice Ononiba dissolving the marriage by a decree nisi is not the kind of appeal that can be expected to have been intended by Section 58 of the MCA.
The Appellant submitted that if the learned trial Judge had adverted his mind to the gapping points of difference between the Amobi case and the other factors peculiar to the instant case, as highlighted by her, the learned trial Judge would surely have come to a different conclusion and would have held that the order nisi was no longer subsisting when she (Appellant) and late Onyejiaka contracted the statutory marriage between them and a fortiori, that the marriage between her (Appellant) and late Onyejiaka was a valid marriage. The Appellant submitted that the Dejonwo case (supra) showed clearly that where an appeal does not arise out of or seek a rescission of the order nisi such an appeal cannot operate to postpone or stall or stay the expiration of the decree nisi. In other words, if upon the consideration of Section 58(5) of the MCA, the appeal lodged cannot be conveniently brought under any of the interpretations given to “appeal”, it will not be effective to stay the transformation of a decree nisi to a decree absolute. That-the order nisi, in the instant case could not be stayed from becoming absolute. The Court was urged to resolve this issue in favour of the Appellant and to set aside the judgment of the lower court on that score.
Dwelling on this issue, the stance of the Respondents is that the pendency of an appeal against a decree nisi dissolving a marriage will result in the continued subsistence of the marriage notwithstanding the expiration of the statutory period of the order nisi. In other words, that the learned trial Judge rightly found/held that “a combined reading of Sections 33 and 58 of the Matrimonial Causes Act clearly shows that a party to a marriage celebrated under the marriage act cannot remarry until the order of decree nisi has become absolute and that an order nisi shall not become absolute during the pendency of an appeal filed within 90 days from the date the decree nisi was issued”. The case of Ononuju v. Ononuju (2002) 1 SMC 145 was cited in aid.
The Respondent stressed the point Section 58(3) of the Act which relates to the effect of appeal instituted within the period of decree nisi contains no proviso nor limitation on the suspension of the order absolute “until the appeal is determined or discontinued”. The Respondent submitted that decree nisi therefore expires statutorily, if there is an appeal, 18 days after the determination of the appeal without further appeal wthin time. The Respondents submitted to the effect that based on the evidence before the lower court, the conclusion of the lower court concerning the status of the marriage of the Appellant to late Onyejiaka was correct. The Respondents further submitted that as there was no limitation placed on the appeal, and that the late husband of the 4th Respondent never took steps to obtain an order absolute before the purported marriage with the Appellant; thus, by the nature of the judgment only a court order or a Registrar’s certificate contemplated by S.59 of the MCA could be evidence of the decree absolute but there was none obtained before the purported marriage. The Respondents stated to the effect that the Amobi case was applicable to the instant case and that the lower court in any event did not place reliance on the said case alone. That it also relied on the fact that the Appellant did not challenge the fact of pendency of appeal nor its validity during trial. Still dwelling on the distinction drawn by the Appellant between the Amobi case and the instant case, the Respondents referred to the definition of appeal in section 58(5) MCA, and submitted that the appeal lodged against the judgment dissolving the marriage of the 4th Respondent, majorly on ground of lack of fair hearing (see Exh. H), was clearly against or arose out of the decree nisi, irrespective of the unheard cross-petition of the said 4th Respondent for nullification of the marriage. That it was the dissolution granted that was being challenged scricto sensu.
It was also submitted by the Respondents that the Dejonwo case cited by the Appellant “is a mere persuasive authority which this court is not bound to follow because it was decided by the court of Appeal sitting in Lagos”. That in any case, to the extent that the appeal must have arisen out of or against the decree nisi and in substantial compliance with Section 58(3) and (5) of MCA, the case supported their case.
As earlier stated disclosed in this judgment, the Appellant filed a reply brief of argument to the Brief of the Respondents. The whole of the Respondents, Brief of Argument consists of 10 pages. Appellant’s reply brief consists of 9 pages. In her Brief of Argument’ Appellant devoted 6 clear pages (see pages 4 – 10 thereof) to Issue 1 now under consideration. The Respondents on their part devoted 3 clear pages of their Brief of Argument to the Issue (see pages 3 – 5 thereof). In her reply brief the Appellant has devoted 4 clear pages to Issue 1 (see pages 2 – 6 thereof). I have read the reply brief and I am of the settled view that what the Appellant has basically engaged in, concerning Issue 1 under consideration is a re-argument of the Issue under the guise of citing new cases on the matter and/or distinguishing cases cited by the Respondent. I therefore see no need to embark on any detailed review of the submissions in the said reply brief in respect of this Issue.
The Appellant is the party that instituted the instant case before the lower court. The Appellant narrated the fact of the case in her brief of argument. Though the Respondents went on to narrate further facts, there was no aspect of the case as narrated by the Appellant that the Respondents disagreed with. At pages 109 – 110 of the record of appeal, the learned trial Judge set out the facts of the case that were not in dispute as well as those in respect of which the Respondents joined issues with the Appellant having regard to the pleadings of the parties, They read thus:-
“(1) That late Barrister Ike Onyejiaka married the 4th defendant under the Marriage Act.
(2) That the marriage was blessed with one issue – little Miss Chisom Onyejiaka who is the 7th defendant in this case.
(3) That the marriage between late Barrister Ike Onyejiaka and the 4th defendant later broke down and this led to the filing of a petition for the dissolution of the said marriage by late Barrister Ike Onyejiaka.
(4) That the High Court, Awka presided (sic) by Hon. Justice G.U. Ononiba issued a decree nisi for the dissolution of the marriage between the late Barrister Ike Onyejiaka and the 4th defendant.
(5) That the defendants sold the property of late Barrister Ike Onyejiaka at Umudioka village, Awka.”
The facts upon which the Respondents joined issues with the Appellant as identified by the learned trial Judge are:-
“(a) Whether any marriage was validly celebrated between the late Ike Onyejiaka and the plaintiff.
(b) Whether there was an appeal filed against the order nisi dissolving the marriage celebrated between late Barrister Ike Onyejiaka and the 4th defendant.
(c) Whether the Marriage certificate issued to the plaintiff was obtained from proper source.”
Before the learned trial Judge resorted to the provisions of Sections 33 and 58 of the MCA, he stated at page 111 of the record to the effect:-
1. that the case of the Appellant is that the marriage celebrated between late Barrister Ike Onyejiaka and the 4th Respondent was validly determined before late Onyejiaka married her at the Marriage Registry Awka and that a Marriage Certificate admitted as Exhibit F was tendered in the proof of the marriage; and
2. that the case of the Respondents is that the marriage allegedly celebrated between late Onyejiaka and the Appellant was null and void in that it was celebrated during the pendency of an appeal filed against the order of decree nisi issued by Ononiba, C. J., on 26/2/2002 and when the decree nisi had not become absolute.
The Appellant having regard to her submissions which have been extensively highlighted in this judgment certainly does not dispute the fact that the lower court had before it evidence of the appeal lodged by the 4th Respondent. I do not also understand the Appellant to be suggesting that the appeal was lodged outside the time provided by law for it to have been lodged. Again, it is clear that the Appellant has not argued that the order nisi made by the court that entertained the petition of late Onyejiaka for the dissolution of the marriage between him and the 4th Respondent had become absolute at the time the 4th Respondent lodged the appeal. It is also not in doubt that the Appellant is not saying that the decision in the Amobi case relied upon by the lower court did not decide to the effect that a party in a matter wherein a decree nisi has been issued cannot marry for as long as the appeal lodged in the matter is pending. The Appellant without doubt is also not contesting the fact that she and late Onyejiaka got married when the appeal the 4th Respondent lodged in the matter of the dissolution of the marriage between her and late Onyejiaka was pending. What the Appellant has engaged in, is to argue that there was no appeal properly so called because the 4th Respondent was not seeking for the sustenance of the dissolved marriage in her appeal. Indeed that it cannot sensibly be said that the 4th Respondent who equally filed a cross-petition seeking for the nullification of the marriage by her appeal was seeking for the restoration of the marriage.
I cannot but say that the Appellant who in her submissions introduced the issue that there were in existence special circumstances that did not stay or put on hold the operation of the order nisi made by the court never referred to any part of her pleading where facts in that regard were pleaded; neither did she refer to pleaded facts wherein any special circumstance or circumstances could be deduced. The Appellant in her reply even relied on Section 71 of the 1959 Australian MCA, on the issue of special circumstances and said that the said Section 71 is in pari materia with Section 57 of our own MCA, I am simply amazed that the Appellant has resorted to Section 57 of the MCA and/or any case decided on the basis of the provision of the Section for the purpose of faulting the decision of the learned trial Judge concerning the status of her marriage to late Onyejiaka vis-a-vis the decision in the Amobi case which the learned trial Judge relied upon, and against the backdrop of the undisputed facts of this case. This is because Section 57 of the MCA deals with the situation relating to transformation of decree nisi into decree absolute, where proper arrangements have not been made in respect of the advancement and education of children of the marriage under 16 years. The Appellant would appear not to remember that no aspect of her case was predicated on facts that can lead to the invocation of the provision of Section 57 of the MCA.
In the case of ONONUJU V. ONONUJU (1991) 5 NWLR (Pt. 192) 479, this Court dwelling on “order nisi”, per Kolawole, JCA; stated thus:-
“Ordinarily a decree nisi becomes absolute by force of section 58(1) of the Act upon the expiration of a period of three months from the day of making of the decree. Under section 57 a decree nisi may be made absolute upon the expiration of 28 days from the making of the decree if there are special circumstances shown to the satisfaction of the trial judge. First, there were no special circumstances stated by the learned trial judge why the decree nisi should be made absolute upon the expiration of 28 days from the date of making of the decree; secondly the appellant filed her appeal against the learned trial judge’s decision of 14 July, 1988 promptly on 22 July, 1988 and this was before the expiration of the 28 days stipulated by Eziri J; even if the original order of 14 July, 1988 was valid, once an appeal had been filed before the expiration of 28 days from the making of the decree, the learned trial judge was incompetent to make the decree nisi absolute during the pendency of the appeal. The decree nisi can only be made absolute at the expiration of a period of 28 days from the day on which the appeal is determined.”
(Underlining supplied by me).
See also the English case of LLOYD-DAVIES v. LLOYD-DAVIES [1947] P 53. All ER 161 (CA), it was held to the effect that where an appeal is pending against a decree nisi, a judge has no discretion or right to grant an application to make the order absolute, even if in his opinion the appeal is frivolous, vexatious or otherwise without merit.
Relying on the Dejonwo case (supra), the Appellant has argued to the effect that the learned trial Judge was wrong in his conclusion concerning the status of her marriage to late Onyejiaka. I must say right away that the death of Onyejiaka would appear to have no relevance in the transformation of the order nisi in the instant case into an order absolute as perceived by the Appellant. This is because the status of the marriage between the Appellant and late Onyejiaka has to be determined in relation to the particular point in time that it was contracted and in the light of existing circumstances at the point in time.
Having regard to the documentary evidence before the lower court, the marriage between the Appellant and late Onyejiaka was clearly not contracted after the order nisi had by operation of law become absolute, It was contracted after an appeal had been lodged by the 4th Respondent and which appeal by law stayed the order nisi from further running. It was also contracted during the pendency of the appeal. It is my considered view that the submissions of the Appellant that the appeal of the 4th Respondent was no proper appeal because she herself was by her cross-petition seeking for the nullification of the marriage, attractive as it is, has clearly not negated the fact that the 4th Respondent appealed against the order nisi made in the petition brought by late Onyejiaka and in which she (4th Respondent) equally had a cross-petition for the nullification of the same marriage. The Appellant has not argued that the 4th Respondent did not appeal against the order nisi by her appeal. It must be appreciated that though the cross-petition of the 4th Respondent was taken out in the petition of late Onyejiaka and seeking for a relief that strikes at the very foundation of the marriage between her and Onyejiaka, the said cross-petition is separate and has a life of its own. It would therefore appear that the relief sought in the cross-petition cannot be said to have obliterated the fact that the 4th Respondent by her appeal was seeking for the reversal of the order nisi entered in the petition of late Onyejiaka if the appeal had succeeded.
The situation on ground in the instant case therefore was that both the Appellant and late Onyejiaka deliberately contracted their marriage under the Marriage Act, when the order nisi granted in the petition of Onyejiaka was not only yet absolute (and could not have become absolute for as long as the appeal of the 4th Respondent subsisted), but also during the subsistence of the said appeal lodged by the 4th Respondent. Where then is the special circumstance or circumstances, in the face of the cold facts relating to the marriage which both the Appellant and late Onyejiaka decided to contract. I see none; neither do the cold facts of the instant case throw up any inference of special circumstance(s).
The Amobi case (relied upon by the learned trial Judge), Ononuju case (cited by the Respondents), and even the Dejonwo case (cited by the Appellant) all decide that a marriage contracted in circumstances such as the one between the Appellant and late Onyejiaka is void. In the circumstance, whether or not the facts of the instant case and those in the Amobi case are on all fours, the decision in the case was very much relevant at least as they relate to their points of similarity, and the learned trial Judge was right in relying on the decision in the Amobi case in reaching his conclusion that the marriage between the Appellant and Onyejiaka was void. Flowing from the above, is that I find the conclusion of the learned trial Judge that the marriage contracted between the Appellant and late Onyejiaka was void, to be very correct and unassailable inasmuch as the same was contracted while the order nisi made in the petition for the dissolution of the marriage between the 4th Respondent and late Onyejiaka not only remained stayed by the appeal filed therein by the 4th Respondent, but also during the pendency of the said appeal. The decision of the learned trial Judge on the status of the marriage between the Appellant and late Onyejiaka therefore cannot be set aside on the basis of Issue 1.
ISSUE 2:
Dwelling on this Issue, the Appellant submitted that quite apart from the fact that the Amobi case does not apply to the instant case, being clearly distinguishable from it, the nature and object of the appeal which was lodged by the 4th Respondent was not one that could operate to prevent the decree nisi from becoming absolute as was held in the Dejonwo case (supra). The Appellant further submitted that the decree nisi not having been prevented from becoming absolute by the nature of the appeal filed three days before the expiration of its life, had become absolute since the appeal was on some other issue not arising out of the decree nisi and with the objective not of sustaining the marriage but of achieving the nullity thereof. That on the authority of the Dejonwo case (supra) section 58(4) of the Matrimonial Causes Act has no application to the instant case and accordingly, the decree nisi had become absolute and therefore ended the marriage between late Onyejiaka and the 4th Respondent by the time she (Appellant) celebrated her marriage with late Onyejiaka. That by the time of his death, late Onyejiaka was therefore lawfully and validly married to her, and his subsequent death had nothing to do with and did not elongate the decree nisi which had long become absolute. The Appellant urged the Court to resolve this issue in her favour, and hold that her marriage with late Onyejiaka was valid.
Dwelling on this issue, the Respondents stated that the statutory period of decree nisi is 90 days after which the decree could become absolute if there was no appeal filed within the 90 day period. That in the instant case, there was an appeal entered albeit, 3 days before the expiration of the 90 days. That by virtue of Section 58(3) of MCA, after filing the appeal, the decree nisi could only become absolute 28 days after the determination or discontinuance of the appeal.That the pertinent question is not whether 90 days have elapsed since the judgment or whether it was 7 months thereafter that the purported subsequent marriage with Appellant was contracted, but whether there was a pending appeal filed within the 90 days period and that the same had not been determined nor discontinued at the time of the purported subsequent marriage. That pursuant to Section 33 of MCA, the trial Judge rightly held that the marriage purportedly entered into between late Onyejiaka and the Appellant at a time the decree nisi dissolving the marriage earlier celebrated between late Onyejiaka and the 4th Respondent has not become absolute, is therefore void.
It is also the stance of the Respondents that the position of the Appellant to the effect that the decree nisi had become absolute “since the appeal was on some other issue not arising out of the decree nisi and with the objective not of sustaining the marriage but of achieving the nullity thereof was not tenable given their earlier submission that the appeal was against or arose out of the judgment of decree nisi entered without fair hearing to the 4th Respondent; and that it is immaterial whether the 4th Respondent had intended to have the marriage rather nullified. Furthermore, the Respondents said that the appeal lodged by the 4th Respondent and referred to as Exh. H at page 140 of the record is not part of the record before this Court and that this Court cannot speculate on the content of a document not before it and cited the case of Koku v. Koku (2002) 1 SMC 45 in aid. It is also the stance of the Respondents that as the Appellant did not dispute the pendency of the appeal nor the objective while at the lower court because she did not file a reply and defence to their Statement of Defence/Counter-Claim where the issue of the appeal was raised, it was now too late in the proceedings to raise the issue in this Court, because parties might need to call witnesses,
It is my settled view that this Issue is somehow subsumed in Issue 1 and would therefore require no elaborate consideration. The courts as can be seen in the cases hereinbefore cited, have shown that the lodging of an appeal against an order nisi suspends or interrupts the period when the order nisi can by operation of law become absolute. Whether or not the appeal lodged by the 4th Respondent in the petition brought by Onyejiaka was so lodged when the period within which to appeal had only three days to run, the fact is that the appeal having been lodged within time was properly or validly lodged. The position of the order nisi having been stayed from running by virtue of the appeal lodged in the petition brought by late Onyejiaka, it therefore follows that there is no fact and/or legal basis for the assumption that the marriage between the Appellant and late Onyejiaka was at anytime contracted well beyond the statutory period of the decree nisi. Flowing from all these is that Issue 2 must be and is hereby resolved against the Appellant.
ISSUE 3:
Dwelling on this Issue, the Appellant submitted to the effect that conclusion of the learned trial Judge in relation to her liability for false imprisonment is erroneous having regard to the circumstances of the case. That the learned trial Judge in anchoring his conclusion on the case of Ogunyade Vs. Oshunkeye (2007) 15 NWLR (Pt.1057) 218, failed to appreciate that what might be regarded as unchallenged and uncontradicted evidence before the lower court, was not cogent, reliable and reasonable to sustain the claims of the Respondents that he granted. That it was unimaginable that the learned trial Judge would without more accept evidence to the effect that the Appellant directed the police to arrest, detain and assault the 2nd and 3rd Respondents, and therefore liable, when other than making a report to the police, for any alleged offence or threat to commit a crime, there is no way the Appellant could have got the police to arrest the 2nd and 3rd Respondents. That if upon proper report, the police acted and arrested a person, unless there is proof of anything more than the usual police duty to arrest, detain and interrogate, there is no way it could be supposed that she (Appellant) would direct and command the police to arrest, detain and assault the 2nd and 3rd Respondents. The Appellant urged the Court to resolve this issue in her favour and reverse the award of damages made against her.
Dwelling on this issue, the Respondents in the main submitted that it is a recurring decimal and a fact that they pleaded in paragraphs 20 and 21 of their Statement of Defence that the Appellant arrested them with police, detained and tortured them, yet the Appellant never thought it worthwhile to file a reply and defence to the counter-claim in order to rebut the allegation, if they were not true. That in the premises the Appellant is taken to have admitted the averments and the case of Bakare v. Ibrahim (1973) 6 SC 205 was cited in aid. That this is particularly so, as the 2nd, 4th and 7th Respondents in their respective statements on oath all gave evidence of the arrest, detention and torture of the 2nd, 3rd and 4th Respondents by the police at the instance of the Appellant. That against the backdrop of the fact that the Appellant did not cross-examine the witnesses on the issue, their evidence remained unchallenged and uncontradicted and ought to be accepted as establishing the facts therein contained. That the submission of the Appellant that the making of a report only was insufficient to prove the facts, is a belated argument which could have been raised in a defence to counter claim.
In their Counter-Claim, the Respondents sought for the sum of N50 million being special and general damages for assault and false imprisonment in relation to the 1st – 4th Respondents, and not in relation to all the Respondents. The learned trial Judge in his judgment granted the claim as it relates to the 2nd and 3rd Respondents only. Having regard to the names of the parties as arranged in the Statement of Defence, these two Respondents are Nwanneka Onyejiaka; and lfeanyi Onyejiaka. Having regard to the record, the Respondents that testified in the proof of the case and counter-claim of the said Respondents are the 4th Respondent as DW1, 7th Respondent as DW2, and 2nd Respondent as DW3. The claim for damages for unlawful arrest, assault, false imprisonment and damages therefore, is one “in relation to the person” of the person alleging the unlawful arrest, assault and false imprisonment. Against the backdrop of this, I find it difficult to comprehend how the learned trial Judge could meaningfully have found in favour of the 3rd Respondent in respect of the claim for damages for assault and false imprisonment when this particular Respondent never testified before the lower court at all.
The law is settled that it is the plaintiff who has brought an action that nominates the issues for resolution in the case. It is also the position of law that the defendant in a counter-claim is akin to the plaintiff in the main case.Again, it is the settled position of the law that a plaintiff can only succeed in his case on the pleading upon the strength of the same.Finally, it would appear to be beyond dispute that the evidence to prove an allegation is donated by the allegation itself. Against the backdrop of all these, it is my considered view that there was no basis for the learned trial Judge to have found the 3rd Respondent who never testified before him as to any unlawful arrest, assault and/or false imprisonment at the hand of anybody entitled to any damages concerning the claim in that regard.
The learned trial Judge found both 3rd Respondent who was not entitled to any damages in respect of the claim for unlawful arrest, assault and false imprisonment and the 2nd Respondent who testified in respect of the claim to be entitled to the claim and awarded them damages in the sum of N10,000.00. It is clear from the deposition on oath of the 2nd Respondent which he adopted as his oral evidence before the lower court, that he at least was arrested upon the allegation that he killed somebody and took his car. There is no evidence concerning where the 2nd Respondent was detained, talk less of the duration of the detention. It is my considered view that it is sine qua non for a person who has alleged that he was unlawfully arrested, detained and falsely imprisoned to establish the fact of the same, and that this is not established by the mere repetition of the words. And this is all that the 2nd Respondent had done in his statement on oath.
Against the backdrop of all that has been said, I am therefore at one with the Appellant that what the learned trial Judge considered to be unchallenged and uncontroverted evidence before him, woefully failed to prove the allegation inherent in the claim for damages that he also awarded in relation to the 2nd Respondent.
Flowing from the above, is that I find the 2nd and 3rd Respondent not to have established their respective entitlement to the general damages the lower court awarded them in respect of the claim in that regard and the order of injunction predicated thereon.
In conclusion issue 3 is resolved in favour of the Appellant.
In the final analysis, the appeal partly succeeds given the resolution of issue 3 in favour of the Appellant. Accordingly and given the earlier resolution of issues 1 and 2 against the Appellant, the judgment of the learned trial Judge delivered on 2/11/2007, dismissing the claims of the Appellant in their entirety having found that the marriage between the Appellant and late Onyejiaka is void is affirmed. Also given the resolution of issue 3 in favour of the Appellant, the award of general damages in the sum of N10,000.00 to the 2nd and 3rd Respondents and the order of perpetual injunction granted in the judgment are hereby set aside.
I make no order as to costs.
ABUBAKAR JEGA ABDUL-KADIR, J.C.A: I read before now the judgment just delivered by my learned brother LOKULO-SODIPE, JCA. I agree with him entirely that having resolved issues 1 and 2 against the Appellant, the judgment of the learned trial judge delivered on 2/11/2007 dismissing the claims of the Appellant in their entirety having found that the marriage between the Appellant and late Onyejiaka is void is affirmed. Having resolved issue No 3 in favour of the Appellant, the award of general damages in the sum of N10,000 to the 2nd and 3rd respondents and the order of perpetual injunction granted in the judgment are hereby set-aside.
I abide by all the order as to costs.
ADAMU JAURO, J.C.A: I had the advantage of reading in advance the judgment just delivered by my learned brother, A.O. Lokulo-Sodipe JCA. I am incomplete agreement with the reasoning and conclusions contained therein which I also adopt as mine.
The appeal succeeds in part and it is partially allowed in terms of the orders contained in the lead judgment.
I abide by all consequential orders made in the said judgment.
Appearances
V.N. Asogwa (Mrs.)For Appellant
AND
Chief E.C OkechukwuFor Respondent
