MR. JOEL OBIDIEGWU v. MRS. UKACHI OBIDIEGWU
(2019)LCN/13008(CA)
In The Court of Appeal of Nigeria
On Friday, the 29th day of March, 2019
CA/E/501/2014
RATIO
MATRIMONIAL CAUSES ACT: HOW TO DETERMINE THE VALIDITY OF A MARRIAGE CERTIFICATE UNDER BIAFRA
This matter is indeed a very simple one and concerns primarily the validity of Exhibit D, the marriage certificate issued by the Marriage Registry Owerri, Biafra. The answer is to be found in the Marriage (Validation) Act Cap 219 LFN 1990 under which marriages contracted in the Marriage Registries in “the Republic of Biafra” were validated by law and are valid as statutory marriages celebrated in Nigeria. As submitted by learned counsel for the Respondent, the Act came into force on the 11th day of August 1971 and is described as “An Act to validate certain marriages celebrated in the Western, Eastern and Northern States of Nigeria between 1st January, 1964 and the commencement of this Act, which were considered to be of doubtful validity”.Section 3 of the Act provides as follows:
“Subject to this Act, all marriages purporting to have been celebrated under the Marriage Act between 30th May, 1967 and the coming into operation of this Act in the East-Central, Rivers and South-Eastern States which would have been valid if celebrated-
(a) in duly designated marriage districts;
(b) before duly appointed registrars of marriages; and
(c) in duly appointed marriage offices, shall be and be deemed always to have been valid in law as if they had been celebrated with due observance of the requirements of the law.”
Exhibit D shows that the marriage between the Respondent and Osita Obidiegwu satisfied all the conditions set out above and has put to rest every doubt about the validity of the statutory marriage between the Respondent and the late Osita Obidiegwu. In the case of FELICIA ONUKWUDORO V. ANTHONY ONUKWUDORO (UNREPORTED) SUIT NO. O/12D/72 referred to by Respondent?s counsel the parties were married in the Divisional Registrar’s Office Mgbidi, Ihiala Division in December, 1969. The Marriage Certificate issued to the parties at the Marriage Registry, Ihiala was headed in “Republic of Biafra”. The Court held that the marriage was retrospectively validated and accepted the certificate issued in respect thereof as evidence of a valid statutory marriage. Of Section 3 of the Marriage (Validation) Act Cap 219 LFN 1990 Agbakoba J (as he then was and of blessed memory) held as follows:
“I am of the view that it validates all marriages contracted in Contravention of the provisions of the Marriage Act Cap 115
Provided such marriages were purportedly celebrated under the Marriage Act whether or not celebrated in duly designated marriage districts or before duly appointed registrar of marriage or duly appointed marriage offices. I am further of the view that the Act cured all defects of form, regularized all irregularities and so legalized all such marriages which but for its promulgation would have been invalid.”PER CHINWE EUGENIA IYIZOBA, J.C.A.
MATRIMONIAL CAUSES : REBUTTABLE EVIDENCE
Learned counsel is right that the acts of celebration of marriage at the Marriage Registry, Owerri, execution and issuance of Exhibit D (marriage certificate) by the Registrar of Marriage which exhibit substantially complied with FORM E of the First Schedule to the Marriage Act cannot be impeached peremptorily by a Court in the absence of rebuttal evidence of the statutory presumption. To show how difficult it is to rebut the presumption, see the observation of the SC in the case of ANYAEGBUNAM V ANYAEGBUNAM (1973) LPELR-507(SC) Per FATAYI-WILLIAMS ,J.S.C (Pp. 14-15, paras. D-C) :
“… while Section 82 provides for a general standard of proof, Section 86 provides for what is required as proof of birth, death, or marriage. Again, it will be inappropriate to suggest that the only way to prove a birth, death or marriage is by the production of the relevant certificate or a certified copy thereof. Thus, where there is evidence of a ceremony of marriage having been gone through, followed by the cohabitation of the parties, everything necessary for the validity of the marriage will be presumed, in the absence of decisive evidence to the contrary, even though it may be necessary to presume the granting of a general licence. For example, in Piers v. Piers (1849) 2 H.L. Cas. 331, a marriage was solemnised by a regularly ordained clergyman of the Church of England, in a private house as if by special licence; there was in fact no such licence, nor any entry of its having been granted, nor could any registration of the marriage itself be found. The Bishop of the Diocese, thirty years after the solemnization of the marriage, testified that, in his belief, he had not granted the licence but that it might have been granted by his predecessor who died about one and a half years before the marriage.PER CHINWE EUGENIA IYIZOBA, J.C.A.
JUSTICES
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
JOSEPH OLUBUNMI KAYODE OYEWOLE Justice of The Court of Appeal of Nigeria
ABUBAKAR SADIQ UMAR Justice of The Court of Appeal of Nigeria
Between
MR. JOEL OBIDIEGWU Appellant(s)
AND
MRS. UKACHI OBIDIEGWU Respondent(s)
CHINWE EUGENIA IYIZOBA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Anambra State, Awka judicial Division in Suit No. A/34/2012 delivered on 16/6/14 Coram Emembolu J.
THE FACTS:
The Plaintiff/Respondent is a retired nurse resident in the UK with her four daughters, the children of the union between her and the defendant?s brother Osita Obidiegwu. The Respondent claims she got married to Osita both under customary law and statutorily in 1969 in Biafra and tendered as evidence a marriage certificate dated 10/12/69. They co-habited in Lagos and later in England. Osita Obidiegwu died in England in 2008. Before his death Osita and the Defendant/Appellant his younger brother Joel Obidiegwu, jointly built a two wing four-bedroom duplex at their home town, Odida-Ama village Agulu. Osita occupied the right wing of the duplex while Joel occupied the left wing. The Respondent claimed that after the death of her husband, the defendant Joel started exercising control and managing the wing of the complex belonging to her husband Osita and actually with the rest of his family
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stopped her from entering the compound when she visited; hence the institution of this suit claiming as follows:
i) A declaration that the right wing of the duplex belonging to the late husband Mr. Osita Obidiegwu belongs to the claimant and her children being the survivors of the late husband.
ii) An Order of perpetual injunction restraining the defendant, his agents and privies from trespassing or exercising acts of ownership, control and management of the said right wing of the duplex belonging to the husband.
iii) An Order compelling the defendant to give account of the entitlement of the plaintiff?s late husband received by the defendant from Nigeria postal service where the late husband worked.
iv) An Order compelling the defendant to hand over to the plaintiff all the documents of the plaintiff’s late husband’s shares and bank accounts in the defendant’s possession.
v) An Order of perpetual injunction restraining the defendant, his agents and privies from preventing or stopping the plaintiff and her children from entering their compound known as Obidiegwu compound in Odida-Ama Village, Agulu, Anambra State.
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The Appellant in his brief of argument summarized his side of the story thus:
?The plaintiff met the late purported husband in the course of her work at Queen Elizabeth Hospital, Owerri during the Biafra War, took advantage of his ill-health and got herself pregnant. The plaintiff had an unformalized relationship with the defendant’s elder brother and had four issues for the latter. They lived together in Lagos before she convinced him to move the family to the United Kingdom. The defendant’s late elder brother gave his consent having being (sic) deceived that he would obtain proper treatment for his injuries in the United Kingdom. The reverse was the case as late Osita Obidiegwu suffered series of maltreatment and neglect in the hands of the plaintiff to the extent that he joined Strangers Rest Church for survival in the United Kingdom while his children were taken to a Council Welfare Home. At a point, the plaintiff came back to Nigeria and moved out all her belongings from the purported husband’s reserved apartment in Lagos and took them to a place of her choice without informing the purported husband. Those abnormal behaviors of
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the plaintiff continued until the demise of late Osita Obidiegwu. It was on the demise of late Osita Obidiegwu that the plaintiff woke up from her slumber and started acting as the wife of late Osita Obidiegwu. Her aim is to use the position as the late Osita Obidiegwu’s wife to get ownership rights over all the estate of late Osita Obidiegwu to the exclusion of the children of late Osita Obidiegwu.”
The Appellant filed his statement of defence on 28/5/2012 while the respondent filed a reply to the statement of defence on 13/7/2012 together with additional documents. On 20/11/2013 the plaintiff withdrew prayers 9 (c) and (d) in her Statement of Claim and they were struck out. Trial commenced with both the Plaintiff and Defendant testifying as PW1 and DW1 without calling any other witness. Written addresses were duly adopted. The learned trial judge delivered judgment on 16/6/14 granting the Respondent?s reliefs i and v. Dissatisfied with the judgment, the Appellant appealed by Notice of Appeal containing three grounds of appeal, out of which he formulated three issues as follows:
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a) Was the judgment of the trial Court not against the weight of the evidence given before the said Court?
b) Whether the learned trial judge was right in attaching weight to and basing his judgment on Exhibit D which was a marriage certificate issued in a non licensed marriage registry situated in a non-existent country, Biafra.
c) Whether the learned trial Court was right in holding that the evidence of long cohabitation between the respondent and the appellant’s late brother meant that they were married despite strong rebuttal by the defendant of the existence of such marriage.
The Respondent in her brief formulated two issues from the grounds of appeal as follows:
(1) Whether the trial Court was right when it held that there was a valid marriage between the Respondent and late Osita Obidiegwu, (Grounds 2 & 3)
(2) Whether on the strength of the evidence adduced at the lower Court, the Court was right to grant the reliefs sought by the Respondent. (Ground 1)
?
The three issues formulated by the Appellant and the two issues of the Respondent can be subsumed under a single issue thus: ?Whether the learned trial Judge was right in his conclusion that there was a valid marriage
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between the Respondent and the Appellant?s brother and in granting the reliefs claimed by the Respondent.?
The crux of the dispute in this appeal is whether the Respondent was lawfully married to the Appellant?s brother Osita Obidiegwu. The Respondent claimed she was lawfully married to Osita both under customary law and under the Statute. She tendered as evidence of the statutory marriage Exhibit D the Marriage Certificate issued by a Registrar in Biafra during the war. Learned counsel for the Appellant argued that there was no customary marriage and that the purported marriage under the Act alleged to have taken place during the Nigeria civil war was null and void. Counsel submitted that the fact that the Respondent failed to call even a single member of her family to give evidence that the late Osita Obidiegwu actually paid her bride price shows that no customary marriage ceremony took place. Learned counsel submitted that the Respondent was never brought home and introduced to the Appellants’ family as wife of Osita Obidiegwu because the bride price she claimed to have been paid on her head never happened as bride price is never paid
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to the bride?s mother. Counsel submitted that in a marriage where the husband and wife are legally married and the husband dies; that custom demands the widow of the deceased to be present at the burial and to mourn her husband in accordance with the traditions of the people. He submitted that the Respondent did not accompany the corpse of her purported deceased husband home from London for the burial and did not perform the traditional mourning rites of a widow. Counsel submitted that the Respondent in her evidence contradicted herself in her pleadings as to the reason for her failure to return home for the burial. He further submitted relying on OSUJI VS. EKEOCHA (2009) 39 NSCQR @ 590 AND AREMU VS. ADETORO (2007) 31 NSCQR 62 @ 78 that where a plaintiff gives oral testimony which is at variance with his pleading, he shall be held to have failed to discharge the onus of proof thrust upon him and his claim shall be dismissed.
?
Learned counsel submitted that Exhibit D the Marriage certificate issued in Biafra is not recognized because Biafra is not a country; and that the only marriage that is recognized in Nigeria is the marriage celebrated under the
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Act which is duly licensed by the mi
