EWA JAMINA NEBUWA v. OZOUGWU NEBUWA NNENNA
(2018)LCN/11984(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 18th day of July, 2018
CA/E/447/2017
RATIO
EQUITY: THE PRINCIPLE OF EQUITY
“The principle of equity according to counsel has no place in this case. Moreover equity does not work to deprive legally accrued benefits to a legally married wife or spouse. For equity is known to follow the law. Furthermore, in her cross petition, the Respondent did not ask for the relief that she should be accommodated and taken care of during her life time because of the services she rendered to the deceased during his last days on earth. Rather, the Respondent equally sought the order of the trial Court to declare her as the legal wife of the deceased which will automatically qualified her to the grant of Letters of Administration to administer the estate of the deceased. Thus, the learned counsel submitted that the referred order of the trial Court under scrutiny was made without jurisdiction and called on this Court to invoke its inherent powers to set same aside. He relied in this wise on the case of: Otu v. ACB Int. Bank Plc. (2008) 3NWLR (Pt.1073) p.179, paras. E-G. For a person affected by a null order of a lower Court is entitled to have it set aside on appeal by the appellate Court ‘ex debito justitiae’.” PER OYEBISI FOLAYEMI OMOLEYE, J.C.A
COURT AND PROCEDURE: THE EXERCISE OF JUDICIAL DISCRETION
“For judicial discretion means that Courts are to act according to the rules of reason, law and justice and not according to private opinion or humour. Therefore, exercise of judicial discretion should not be arbitrary, vague and fanciful but legal, regular and based upon the facts and circumstances presented to the Court by the parties to an action from which a conclusion is drawn in accordance to relevant laws by the Court. Hence, where the exercise of discretion of a lower Court tends to do injustice, as in the instant case, the appellate Court is empowered to salvage the situation and set aside any order made in the wrong exercise of such discretion. He relied on the case of: Odulaja v. Wema Bank Ltd. (2015) All FWLR (Pt.800) p.1298, paras. B-F and p.1300, paras. C-E.” PER OYEBISI FOLAYEMI OMOLEYE, J.C.A
JUSTICES
OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria
JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria
SAIDU TANKO HUSSAINI Justice of The Court of Appeal of Nigeria
Between
EWA JAMINA NEBUWA
(suing by her ATTORNEYS David Nebuwa and Uchenna Nebuwa) Appellant(s)
AND
OZOUGWU NEBUWA NNENNA (Nnenna Nebuwa) Respondent(s)
OYEBISI FOLAYEMI OMOLEYE, J.C.A (Delivering the Leading Judgment):
This is an appeal against the judgment of the High Court of Enugu State holden at Oji River (hereinafter referred to as ‘the trial Court’) per Hon. Justice L.O. Okereke delivered on 3rd of March, 2015 in Suit No. HOR/9D/2012.
At the trial Court, the Appellant was the petitioner through her Attorneys, David Nebuwa and Uchenna Nebuwa, her sons. While the Respondent was also respondent thereat. The Appellant took a petition for the nullity of the marriage of the Respondent to Dr. John Ikechukwu Nebuwa, the Appellant’s deceased husband and sought against the Respondent the following reliefs to wit:
(i) A decree annulling the void marriage purported to have been contracted on 31/7/2010 between late Dr. Ikechukwu John Nebuwa and Ozougwu Nnenna Dominica same void ab initio and cancelling Marriage Certificate No: 13715 issued on 31/7/2010 in respect of the purported marriage.
(ii) An Order that Ozougwu Dominica Nnenna who also goes by name Mrs. Nnenna Nebuwa is not entitled to be a beneficiary or an executor of the estate of Late Dr. John Ikechukwu Nebuwa who died intestate on December 15, 2011.
(iii) An Order committing the respondent to prison for contravening Sections 45 and 46 of the Marriage Act.
In her answer to the petition, the Respondent counter-petitioned as follows:
The Respondent counter-Petition for a decree of Court that she is a legitimate wife of Dr. John Ikechukwu Nebuwa and is entitled to all rights and privileges to which a married woman is entitled in the house, properties and affairs of her husband.
The Appellant in proof of her petition against the Respondent fielded one witness, that is, her son and first Attorney, David Nebuwa and tendered twelve documents in evidence. While the Respondent in defence of the petition and in proof of her counter petition personally gave evidence, but neither called additional witnesses nor tendered any documentary evidence.
Mr. David Nebuwa, the first Attorney of the Appellant via Exhibit ‘A’ and first born child of the Appellant and the deceased husband of the Appellant, late Dr. John Ikechukwu Nebuwa, gave evidence as PW1. He stated that the Respondent had been his late father’s patient since 1985 until the latter died on 22nd of December, 2011. The death certificate of the late father is Exhibit ?B?. His late father and mother, the Appellant contracted a monogamous marriage in Poland on 12th of November, 1972, the marriage certificate is Exhibit ‘C’.
The late Dr. J. I. Nebuwa was a Consultant Psychiatrist and Lecturer from 1995 to 2009 at the Nnamdi Azikiwe University, Awka, Anambra State where he retired. The record of the service is Exhibit ‘D’, therein the Appellant is named as the wife and next of kin of the deceased. On the death of Dr. Nebuwa, the Appellant performed and bore both the traditional and Christian funeral rites and expenses. However, because Dr. Nebuwa died intestate, the Appellant, through her legal practitioner Mr. P. S. Nwajagu, duly applied to the Probate Registrar, High Court, Enugu State for the grant of Letters of Administration for the administration of the properties of the deceased. The application is Exhibit ‘E’.
It was during the publication of the statutory notice in respect of the application that the Respondent filed a caveat, Exhibit ‘F’. Annexed to the verifying affidavit of the Respondent is a marriage certificate Exhibit ‘G’ in respect of the purported marriage between the Respondent and the late Dr. J. I. Nebuwa on 31st of July, 2010. The Probate Registrar accordingly invited the Appellant and Respondent for a meeting twice in June and July, 2012 vide Exhibits ‘H’ and ‘J’ respectively but the Respondent failed to attend the said meeting.
On the other part, the Respondent gave evidence as DW1. She stated that she was married to the late Dr. J. I. Nebuwa under native law and custom in her father’s compound at Amuba Uboji Ngwo, as well as in the Church in 2009 and 2010 respectively. She identified Exhibit ‘G’ in respect of the latter marriage. Although she knew that the deceased had three children, PW1 inclusive, the deceased did not tell her that he was married to the Appellant who she never met until after the demise of Dr. Nebuwa. She also only met PW1 and the other two children after the death of Dr. J. I. Nebuwa because all the said children live abroad.
According to her, the deceased told her that he merely had the three children with a woman and she believed the deceased in this regard. Under cross examination, the Respondent stated that she received treatment from the deceased for many years prior to getting married to him. The Respondent also stated that although the head of the Nebuwa family, Mr. Innocent Nebuwa was not in attendance during the said customary marriage because he was out of the country, the deceased older sister, Mrs. Obi and her husband were in attendance at the said ceremony. She stated further that, Dr. J. I. Nebuwa’s death certificate Exhibit ?B? was actually issued to her personally but PW1 tricked and collected same from her under the pre that he needed it for the processing of the travelling document of one of his siblings.
At the close of the parties’ respective cases, the counsel on 17th of December, 2015 adopted the written addresses, including the Appellant’s reply on points of law, filed for their respective clients in substantiation of their opposing positions in the suit.
In the considered judgment of the trial Court delivered on 3rd of March, 2015, after the evaluation of the evidence presented by the parties, the learned trial Judge found as follows (unedited):
1. That there was a subsisting legal marriage between the Petitioner and Late Dr. John Ikechukwu Nebuwa when he contracted the second and subsequent marriage with the Respondent. The Late Dr. Nebuwa knew of the existence of the first marriage with the Petitioner when in 2009 in the record of his service at Nnamdi Azikwe University, Awka, he gave the name of the Petitioner as his Wife and Next of Kin.
2. The Respondent co-habited with the Late Dr. Nebuwa soon after their marriage at No.1 Chike Avenue New GRA Enugu until the death of the said Dr. Nebuwa without any protest by the Petitioner, her children or the family members of the deceased.
3. Dr. John Ikechukwu Nebuwa despite his education and exposure in life failed to make a Will which could have solved the problem facing us now.
Consequent upon the above set out findings, the learned trial Judge, although refused the Appellant’s reliefs (ii) and (iii), granted relief (i) in the following terms (unedited):
Now, the judgment of this Court is that declaring the marriage between the Respondent and Late John Ikechukwu Nebuwa celebrated at Maria Asumpta Catholic Parish Awkunanaw, Enugu on 31-7-2010 null and void for contravening. Section 3(1) (a) of the Matrimonial Causes Act, 2004 and bigamous.
However since the charge of Bigamy is not before me, I refuse to say more on that.
Since Dr. John Ikechukwu Nebuwa died INTESTATE and there is struggle on who collects the letter of Administration to administer his Estate, this Court hereby Orders the Petitioner to hand over the Administration of the Personal and Real Estates of the deceased, Dr. John Ikechukwu Nebuwa to the Administrator General and Public Trustee, Ministry of Justice, Enugu.
The said Administrator General will invoke the principle of equity and accommodate the interest of the Respondent, at least for life, NOT AS THE LEGAL WIFE of late Dr. John Nebuwa but for the services she rendered to the deceased during his last days on earth.
The trial Court’s refusal to grant reliefs (ii) and (iii) and the order made by it in their stead miffed the Appellant. Hence, the Appellant, by the order of this Court made on 10th of May, 2017, filed an appeal to this Court against same through her notice of appeal dated 16th of May, 2017. The notice of appeal made up of five grounds of appeal was filed on 17th of May, 2017. For ease of reference and good grasp, the five grounds of appeal less their particulars are hereunder reproduced verbatim thus:
GROUND ONE
The learned trial Judge Hon. Justice Okereke of Oji High Court erred in law when he made directing orders without jurisdiction in this suit that ‘since Dr. John Ikechukwu Nebuwa died intestate and there is struggle on who collects the letter of Administration to administer his estate, this Court hereby orders the petitioner to handover the Administration of the personal and real estate of the deceased, Dr. John Ikechukwu Nebuwa to the Administrator General and Public Trustee, Ministry of Justice Enugu. The said Administrator General will invoke the principle of equity and accommodate the interest of the respondent, at least for life NOT AS THE LEGAL WIFE of late Dr. John Nebuwa but for the services she rendered to the deceased during his last days on earth’ notwithstanding that the Court had earlier in the judgment declared the marriage between the respondent and late Dr. John Ikechukwu Nebuwa on 31/7/2010 null and void and bigamous.
GROUND TWO
The learned trial Judge misdirected himself when he granted the respondent the relief which was not sought for by any of the parties thus this have occasioned miscarriage of justice to the petitioner.
GROUND THREE
The learned trial Judge erred in law when he made directing orders which binds a non party to the suit before him, which directing order was made without jurisdiction, thus occasioned a miscarriage of justice against the Appellant.
GROUND FOUR
The learned trial Judge erred in law when he denied fair hearing to the Appellant when he raised issue suo motu that ‘the petitioner to hand over the administration of the Personal and Real Estate of the deceased late Dr. John Ikechukwu Nebuwa to the Administrator General and Public Trustee, Ministry of Justice Enugu. The said Administrator General will invoke the principle of equity and accommodate the interest of the respondent, at least for life, NOT AS THE LEGAL WIFE of late Dr. John Ikechukwu Nebuwa but for the services she rendered to the deceasedduring his last days on earth’ without giving the Appellant opportunity to ventilate on the issue before handing the directing orders in this suit thus infringing the constitutional right of fair hearing of the appellant-enshrined in Section 36(1) of Nigerian Constitution 1999 as amended.
GROUND FIVE
The learned trial Judge erred in law when he gave directing orders without jurisdiction believing that such an order is a consequential order.
In deference to the rules of practice of this Court, the brief of argument of the Appellant was settled by her counsel, P.S. Nwajagu, Esq. The brief dated 21st of July, 2017, filed on 31st of July, 2017 was deemed properly filed on 23rd of April, 2018. The three issues identified for determination in the said brief read unedited as follows:
ISSUE ONE
Having ordered that the marriage between late John Nebuwa and Ozougwu Nnenna Nebuwa contracted at Maria Assumpta Parish Awkunanaw on 31/7/2010 is a nullity and bigamous (the legal effect of such nullity marriage well known to him) and the marriage between the appellant and late Dr. John Ikechukwu Nebuwa under the Act still subsisting before the purported marriage of 31/7/2017 (and the legal effect of such subsisting marriage under the Act also well known to him), was the learned trial Judge right to have turned round and issued the directing order as he did and as contained at page 83 in paragraphs 4 to 5 of the Records thereby refusing appellant’s reliefs 2 & 3?
ISSUE TWO
Was the appellants given fair and proper hearing before the learned trial Judge suo motu, without allowing the parties who did not apply for such reliefs to ventilate on the issues he raised in page 83 paragraphs 4 & 5 of the Records which issues and subsequent orders seriously affected the appellant’s civil rights and obligations under Section 36(1) of Nigeria Constitution as amended ?
ISSUE THREE
Whether the trial Court was right to have issued the directing orders to the parties and non party alike that since Dr. Ikechukwu Nebuwa died intestate and there is struggle on who collects the letter of administration to administer his Estate this Court hereby orders the petitioner to hand over the administration of the personal and real estate of the deceased Dr. John Ikechukwu Nebuwa to the Administrator General and Public Trustee, Ministry of Justice Enugu.
The said Administrator General will invoke the principle of equity and accommodate the interest of the respondent, at least for life, NOT AS THE LEGAL WIFE of Dr. John Nebuwa but for the services she rendered to the deceased during his last days on earth, notwithstanding that he had declared the marriage between late Dr. John Ikechukwu Nebuwa and respondent null and void and bigamous?
Although, this is not required under the Rules of this Court, the Appellant by a motion on notice dated 28th of September, 2017 filed on 5th of October, 2017 sought the leave of this Court for the hearing of the appeal on the Appellant’s brief of argument alone, the Respondent having failed to file her Respondent’s brief of argument within the period specified thereunder for the doing of same. The motion, duly served on and not opposed by the Respondent, was granted by this Court on 31st of January, 2018.
At the oral hearing of the appeal on 23rd of April, 2018, the Respondent was absent and unrepresented by counsel. We were satisfied that all the processes in the appeal, particularly the record of appeal, Appellant’s brief of argument and hearing notices were duly issued and served on the Respondent accordingly.
The Respondent also failed to file a brief of argument in defence of the appeal. Indeed, the affidavit of service returned is to the effect that, on 18th of April, 2018, the Bailiff of this Court attempted to serve the Respondent with the hearing notice but she refused the said service, hence, same was left at her last known place of abode. Therefore, it can safely be concluded that the Respondent is not desirous of defending this appeal. However, this Court will still proceed to determine the appeal on its merit.
The learned counsel for the Appellant, P.S. Nwajagu Esq. at the said oral hearing of the appeal identified, adopted and relied on the Appellant’s brief of argument in urging upon this Court to allow the appeal, set aside the consequential order of the trial Court appealed against and grant the two remaining reliefs sought by the Appellant in her petition filed thereat.
I must observe that the three issues contained in the Appellant’s brief of argument are very verbose and have not been professionally crafted.
Issues one and three are repetitive of each other just like grounds one and five upon which they are predicated and consequentially the submissions of counsel thereunder. I am of the view and hold that issue three can be conveniently collapsed into issue one. I shall however do my best to sieve out the relevant submissions from both issues. It must also be stated here that, the citations of most of the legal authorities and references of the statutes rested upon by the Appellants are either incomplete or outrightly wrong. I have therefore decided to jettison and discountenance such cases and laws for the purposes of this judgment.
I shall now consider issues one and two together because they are interwoven.
ISSUE ONE
Having ordered that the marriage between late John Nebuwa and Ozougwu Nnenna Nebuwa contracted at Maria Assumpta Parish Awkunanaw on 31/7/2010 is a nullity and bigamous (the legal effect of such nullity marriage well known to him) and the marriage between the appellant and late Dr. John Ikechukwu Nebuwa under the Act still subsisting before the purported marriage of 31/7/2017 (and the legal effect such subsisting marriage under the Act also well known to him), was learned trial Judge right to have turned round and issued the directing order as he did and as contained at page 83 in paragraphs 4 to 5 of the Records thereby refusing appellant’s relief 2 & 3?
ISSUE TWO
Was the appellants given fair and proper hearing before the learned trial Judge suo motu, without allowing the parties who did not apply for such reliefs to ventilate on the issues he raised in page 83 paragraphs 4 & 5 of the Records which issues and subsequent orders seriously affected the appellants’ civil rights and obligations under Section 36(1) of Nigeria Constitution as amended ?
APPELLANT’S COUNSEL’S SUBMISSIONS:
The learned counsel for the Appellant restated the position of the law that any Nigerian who contracted a marriage under the Marriage Act or monogamously elsewhere even though it may not be under the law of his domicile is automatically removed from the operation of Native Law of succession and brought under the Administration of Estates Law.
He referred to Section 96(2) of Enugu State Administration of Estate Law, 2004 which provides that the grant of Letters of Administration is to be made in respect of a person who died intestate and the order of priority of the persons who shall be entitled to such a grant are the:
(a) Husband or Wife of the deceased
(b) Personal Representative of the Husband who died in the life time of the Wife.
(c) The Next of Kin.
(d) The person entitled on distribution though not Next of Kin.
(e) Personal Representative of the Next of Kin or of the person entitled on distribution.
(f) Creditors.
(g) The Administrator General (if none of the aforementioned person is interested in the grant).
The learned Counsel for the Appellant submitted that, a second marriage entered into under the Act while the first also contracted under the Act subsists is void as was correctly held by the trial Court in the instant case and the surviving wife of the second marriage is not entitled to a grant of Letters of Administration for the administration of the estate of the deceased husband shared by both of them. On this position of the law, he referred to the case of: Agbeja & Anor. V. Agbeja & Anor. (1985) 3NWLR (Pt.11) p.11.
Consequently and in his opinion, the trial Court was wrong to turn round to order that the Appellant should hand over the administration of the personal and real estates of the deceased Dr. John Ikechukwu Nebuwa to the Administrator General and Public Trustee, Ministry of Justice, Enugu for invocation of the principle of equity to accommodate the Respondent for life, though not as the legal wife of late Dr. John Nebuwa but for the services she rendered to the deceased during his last days on earth. Section 96(2) of the Administration of Estate Law (supra) duly provides that the Administrator General and Public Trustee can only apply for Letters of Administration to administer the estates of an intestate if none of the persons listed therein is interested in the grant. In the instant matter, the spouse and children of the deceased, that is, the Appellant and her three Children have indicated their willingness to administer the estate of the deceased and applied for the grant of the Letters of Administration.
The application in this regard is Exhibit ‘E’. Counsel submitted that the trial Court in the circumstances erred in law when it ordered the Administrator General and Public Trustee to take over the administration of the estate of the Appellant’s deceased husband. The Respondent was equally not qualified to be issued with the Letters of Administration in respect of the estates and can not also benefit from the estate, the marriage between her and late Dr. John Ikechukwu Nebuwa having been declared null, void and bigamous. Thereby, the Respondent is a stranger to the estate of the deceased. What is more, the Administrator General and Public Trustee not being a party to the action the subject of this appeal, the trial Court also erred in law to make the order directing him to take over the administration of the estates of the deceased.
The principle of equity according to counsel has no place in this case. Moreover equity does not work to deprive legally accrued benefits to a legally married wife or spouse. For equity is known to follow the law. Furthermore, in her cross petition, the Respondent did not ask for the relief that she should be accommodated and taken care of during her life time because of the services she rendered to the deceased during his last days on earth. Rather, the Respondent equally sought the order of the trial Court to declare her as the legal wife of the deceased which will automatically qualified her to the grant of Letters of Administration to administer the estate of the deceased. Thus, the learned counsel submitted that the referred order of the trial Court under scrutiny was made without jurisdiction and called on this Court to invoke its inherent powers to set same aside. He relied in this wise on the case of: Otu v. ACB Int. Bank Plc. (2008) 3NWLR (Pt.1073) p.179, paras. E-G. For a person affected by a null order of a lower Court is entitled to have it set aside on appeal by the appellate Court ‘ex debito justitiae’.
The learned counsel further referred to Section 13(1) of the Administration of Estate Law (supra) which provides that the Administrator General can only apply for Letters of Administration when he becomes aware of an estate or assets of an intestate within the State which he considers as unrepresented. It is very patent that in the instant case, the estate of Dr. J.I. Nebuwa in question is duly represented, hence, the Administrator General of Enugu State has no locus standi to take over same. Counsel further referred to Section 120(1)(b) of the Administration of Estates Law (supra) which sets out the mode of distribution of the residuary estate of an intestate. Section 120(1)(b) provides as follows:
120(1) (b) In all cases to which this Law applies, the residuary estate of an intestate shall be distributed in the manner or be held on the trusts mentioned in this section, and the distribution of the residuary estate of an intestate shall be in accordance with the following Table –
(b) If the intestate leaves a husband or wife as well as children or children?s children (whether or not he also leaves parents or brothers or children of brothers or sisters) the residuary estate shall be held on trust as to the value of one third thereof for the surviving spouse whose interest shall be absolute in the case of a husband, or for her life or until her remarriage (whichever first occurs) in the case of a wife; the remainder of such estate together with the residue upon cessation of the wife?s interest (if any) shall be held on trust for the intestate?s children in equal shares absolutely.
Hence, the order of the trial Court that the personal and real estates of the deceased who died intestate be distributed on the principle of equity to accommodate the interest of the Respondent who does not fall into any of the categories of persons stated in Sections 96(2)(a) to (i) and 120(1)(b) is unknown to law and invalid. For the law is settled that, the duty of a Court of law is to espouse and apply the law and not to act on sentiments. According to learned counsel, the directing order of the trial Judge under scrutiny is a decision based on sentiments and wrong in law.
The learned counsel yet on this point restated the legal principle that, when an issue that is not in contemplation of the parties to an action is to be adverted to by the Court, fairness entails the Court to give such parties the right to be heard on the issue before it finally determines same. Therefore, a Court would be wrong to decide an issue not raised by parties to an action without giving the parties an opportunity to be heard on it. This is in tune with the right of fair hearing as guaranteed by the Constitution. Thus, it is wrong for a Court to dig into the records, fish out extraneous issues and use them to decide an issue in controversy between the parties, no matter how patently essential those issues may be, without hearing the parties on them. What is more, it is better that the parties themselves raise and argue their own issues. Even where an issue is so fundamental and goes to jurisdiction of the Court, the attention of parties must still be drawn to it and arguments submitted on it by them before the Court’s determination of same. On this position, he referred to the cases of: (1) Yar’adua v. Yandoma (2015) All FWLR (Pt.770) p.1278 para. F and (2) SCC Ltd. v. Kingston (2014) All FWLR (Pt.755) p.403 paras. A-F.
Furthermore, learned counsel argued that it cannot be viewed that, this case falls within any legal exceptions, such as an issue relating to either the jurisdiction of the Court or the parties being ignorant of the statutory provisions relating to the mode of distribution of the estate of late Dr. John Ikechukwu Nebuwa, thereby warranting the trial Court to be expected to take judicial notice of same as provided in Section 122(a) of the Evidence Act, 2011. Also, although the trial Judge was justified to discuss any relevant legislation in its judgment which the parties did not raise, the making of an order by the trial Judge in that regard without hearing the parties on it is not within his judicial and judicious discretion.
For judicial discretion means that Courts are to act according to the rules of reason, law and justice and not according to private opinion or humour. Therefore, exercise of judicial discretion should not be arbitrary, vague and fanciful but legal, regular and based upon the facts and circumstances presented to the Court by the parties to an action from which a conclusion is drawn in accordance to relevant laws by the Court. Hence, where the exercise of discretion of a lower Court tends to do injustice, as in the instant case, the appellate Court is empowered to salvage the situation and set aside any order made in the wrong exercise of such discretion. He relied on the case of: Odulaja v. Wema Bank Ltd. (2015) All FWLR (Pt.800) p.1298, paras. B-F and p.1300, paras. C-E.
In furtherance of his argument, the learned counsel reiterated that the principal relief sought by the Respondent in her cross petition is, a declaration that she is the legitimate wife of late Dr. John Ikechukwu Nebuwa and therefore entitled to all the rights and privileges of a married woman. That is, she wants to be able to inherit the properties of her late husband along with the children of the said deceased. The relief was accordingly refused as the trial Court held that, the marriage between her and late Dr. John Ikechukwu Nebuwa celebrated at Maria Assumptia Catholic Parish Awkunanaw, Enugu on 31st of July, 2010 was null and void having contravened Section 3(1)(a) of the Matrimonial Causes Act, 2004.
Thus the order that she should be accommodated in equity throughout her life time can be said to be incidental to the principal relief which by law cannot and ought not to have been made by the trial Court since the principal relief had failed. For it is trite law that once the principal relief sought in an action is refused, no order incidental to the principal order can be granted. What is more, in the instant case, the said incidental relief was not sought by the Respondent and the trial Court not being Father Christmas ought not to have granted same. The Appellant also did not seek the said relief and same is not incidental to any of the reliefs sought by her. The purpose of pleadings is to reveal to the opposing party the nature of the case he is likely to be confronted with at the earliest opportunity. Thus parties are bound by their pleadings and the Court has no right to set up a case that is not within the contemplation of the parties. In this wise, he referred to the cases of: (1) Burutolu vs. Yeibake (2015) All FWLR (Pt.711) p.1547, paras. G-H and (2) Yusuf v. Oyetunde (1998) 12NWLR (Pt.579) p.483.
RESOLUTION
The first prong of the grouse of the Appellant in this matter has to do with the order made by the learned trial Judge that the Appellant should hand over the administration of the personal and real estates of the deceased, Dr. J. I. Nebuwa to the Administrator General and Public Trustee, Ministry of Justice, Enugu State. The second prong is the order of the trial Judge that the Adminstrator General and Public Trustee in the distribution of the estate of the deceased should invoke the principles of equity and accommodate the interest of the Respondent. This order according to the learned trial Judge is predicated on the ground that, the Respondent, having taken care of the deceased during his later years while alive, should also be taken care of from the proceeds of the estate of the deceased for the remainder of her natural life, even though she was not the legal wife of the deceased.
The three reliefs sought by the Appellant in her petition the subject of this appeal are contained in page 5 of the record of appeal and I have indeed reproduced them as well as the claim in the cross petition of the Respondent, at the debut of this judgment. The law is settled beyond any doubt of peradventure that, Courts should be wary of approaching matters before them from a panoramic point of view. Hence, matters not canvassed by parties should be avoided by the Courts. For a Court must always base its determination on the case as presented by the parties and not veer therefrom. The duty of the Court is to consider the case before it in the light of the complaints of the parties. In the case of: Ojo-Osagie v. Adonri (1994) LPELR ? 2386, the Apex Court held that, generally, the Court has no business setting up for the parties a case opposed to the one set up by them.
However, the Courts are at liberty, at all times, on their own, especially when facts present themselves as such, to raise issues or questions suo motu. This power of the Courts to raise issues on their own, suo motu is inherent, in the bid to do substantial justice in the matter before them especially where the issue is fundamental and touches on the rights of the parties to the action or parties affected thereby. Nevertheless, before proceeding to rule or make any pronouncements on such an issue so raised, the Court is enjoined to invite parties thereto to address the issue in obedience to party’s right to fair hearing. See the cases of: (1) UBA Ltd. V. Achoru (1990) 6NWLR (Pt.156) 254; (2) Okafor v. Attorney General and Commissioner for Justice (1998) 31 LRCN 3679, 2713; (3) Katto v. CBN (1999) 5 SC (Pt.11) p.21; (4) Gwede v. INEC (2014) 18 NWLR (Pt.1438) p.72 and (5) Cunsin Nig. Ltd. Vs. IGP (2008) 5NWLR (Pt.1081) p.546 (CA).
Thus, if the Court must raise any issue ‘suo motu’, it must draw the attention of the parties to it and the parties must be given the opportunity of addressing the Court on such issue. Thence, even where the issue raised ‘suo motu’ by the Court touches on the competency of either the judex or subject-matter of the action, that is, a jurisdictional issue, parties must still be given the opportunity to ventilate their views thereon before the Court goes ahead to hand in its determination of it. This is in conformity with the age-long and constitutionally entrenched fundamental human rights principle of fair trial. See Section 36(1), Chapter IV of the Constitution of the Federal Republic of Nigeria, 1999 as amended and the cases of: (1) INEC v. Atuma & Ors. (2013) LPELR 20589 (SC); (2) Ominiyi v. Alabi (2015) LPELR 24399 (SC); (3) Umar v. Bayero University, Kano (1988) LPELR 3358 (SC) and (4) Kayili v. Yilbuk & Ors. (2015) 7 NWLR (Pt.1457) p.26.
In the case of: Ekpenyong & Ors. V. Nyong (1975) LPELR-1090, the Supreme Court per Ibekwe, J.S.C. (of blessed memory) on this principle of law had the following pointed statements to make:
It is trite law that the Court is without the power to award to a claimant that which he did not claim. This principle of law has, time and again, been stated and re-stated by this Court that it seems to us that there is no longer any need to cite authorities in support of it. We take the view that this proposition of the law is not only good law, but good sense. A Court of law may award less, and not more than what the parties have claimed. A fortiori, the Court should never award that which was never claimed or pleaded by either party. It should always be borne in mind that a Court of law is not a charitable institution; its duty, in civil cases, is to render unto everyone according to his proven claim.
See also the cases of: Okwueze v. Okwueze (1989) LPELR-2539 (SC); (2) Adelaja & Ors. V. Alade & Anor. (1999) LPELR-109 (SC); (3) Adetoun Oladeji (Nig.) Ltd. V. Nigerian Breweries Plc. (2007) LPELR-160 (SC) and (14) Edilcon (Nig.) Ltd. V. UBA Plc. (2017) LPELR- 42342 (SC).
Therefore, as rightly submitted by the learned counsel for the Appellant, the parties not having claimed either of the reliefs contained in the order of the trial Court, the said order was made without jurisdiction. The trial Court has no jurisdiction to go outside the reliefs claimed in the petition and counter-claimed in the answer to the petition/cross petition by the Appellant and Respondent respectively, to search or shop around for possible claim or relief for either or both of them. This is never done and it is really very bad that the trial Court did so in this matter. The said pronouncements of the learned trial Judge are clearly indicative of his devolution from the exalted position of an impartial arbiter between the parties to the arena of their respective cases.
I consider it apposite to observe that in the brief of the Appellant, the learned counsel for the Appellant in his submissions throughout used and referred to the laws of both Anambra and Enugu States simultaneously, albeit for no disclosed reason(s). I therefore consider it proper to set the records straight regarding the applicable laws in the instant matter. The deceased husband of the Appellant was an indigene of Enugu State, although he lived, worked and died in Anambra State. The applicable laws in the matter of the administration of the estate of a deceased person who was an indigene of Enugu State, contracted a monogamous marriage and died intestate just as the late Dr. J. I. Nebuwa, is the Enugu State Administration of Estate Law, 1991 and the Matrimonial Causes Act, Cap M7, Laws of the Federation of Nigeria, 2004.
Thus, the distribution of the estate of the deceased in this case shall be in accordance to the relevant provisions of those laws. For by contracting a monogamous marriage under the Act, as correctly held by the learned trial Judge, the deceased is deemed to have intended the succession to his estate under the English Law and not under Customary Law. See Section 71 of the Administration of Estate Laws, (supra) and the cases of: (1) Cole v. Cole (1898) 1 FNLR p.15 and (2) Obusez & Anor. V. Obusez & Anor. (2007) 10NWLR (Pt.1043) p.430.
Hence, the right or priority of persons to be granted Letters of Administration is as provided under Sections 25 and 96(2) of the Administration of Estate Law (supra). The said Sections 25 and 96(2) provide as follows respectively:
25. When a person dies intestate possessed of real estate the Court shall, in granting letters of administration, have regard to the rights and interests of persons interested in the real estate, and his heir-at-law if not one of the next of kin shall be equally entitled to the grant with the next of kin.
96(2). Subject to the provisions of this Law, the following persons shall be deemed to be interested in the estate of a deceased intestate and shall be entitled to a grant of administration in respect of his estate in the following order of priority-
(a) the surviving husband or wife of the deceased;
(b) children of the deceased or the surviving issue of a child who died in the lifetime of the deceased;
(c) father or mother of the deceased;
(d) brothers or sisters of the whole blood or the issue of any such brother or sister who died in the lifetime of the deceased;
(e) brothers or sisters of the half blood or the issue of any such brother or sister who died in the lifetime of the deceased;
(f) the grandfather or grandmother of the deceased;
(g) uncles and aunts of the whole blood or the issue of any uncle or aunt who died in the lifetime of the deceased;
(h) uncles and aunts of the half blood or the issue of any such uncle or aunt who died in the lifetime of the deceased;
(i) creditors of the deceased; or
(j) failing all of the aforementioned persons, the Administrator-General:
The learned trial Judge also rightly found that the subsequent marriage of the deceased to the Respondent was null and void. Hence, the natural and the legal implication of this finding is that, the Respondent, not having any legal or known equitable relationship with the deceased, is neither qualified to the grant of Letters of Administration nor entitled as a beneficiary under the estate of the deceased. This is because as rightly submitted by the Appellant?s counsel, she is a stranger in law and equity to the estate of the deceased. Contrariwise, the Appellant having been found by the trial Court to have contracted a valid and subsisting monogamous marriage with the deceased who died intestate, is entitled to the grant of Letters of Administration to administer on the estate of the said deceased Dr. J. I. Nebuwa and she is equally a beneficiary thereunder. The Appellant, the wife and indeed the Children of the deceased are on the topmost steps in the list of the persons who are entitled to the grant of Letters of Administration. This is the clear position of the law of intestacy in a monogamous marriage scenario. See Sections 25 and 96(2) of the Administration of Estate Law (supra) and the case of: Obusez & Anor. V. Obusez & Anor. (supra).
It is my humble but very firm view that, the learned trial Judge erred in law to make an order conferring on the Administrator General and Public Trustee of Enugu State the right to take over the administration of the estate of late Dr. J. I. Nebuwa. The Administrator General and Public Trustee can only be entitled to such a grant if none of the categories of persons stated in Section 96(2) (a) to (i) of the Administration of Estate Law (supra) is interested in the grant. That is not the position in the instant matter, the Appellant and her children are clearly interested in the grant, hence, the application Exhibit ‘E’ made by the Appellant to the Probate Registrar, High Court, Enugu State, for the grant of the Letters of Administration to administer the properties of her deceased husband. What is more, as adverted to earlier on above by me in this judgment, neither of the parties has claimed any such relief that the estate of the deceased be administered by the Administrator General and Public Trustee.
Furthermore, the Respondent in her cross-petition sought the order of the trial Court to be declared the legal wife and held entitled as a beneficiary under the estate of the deceased. The cross-petition was impliedly dismissed by the learned trial Judge on the ground of the nullity of the marriage between her and the deceased. Thus, she is not entitled to share in the estate of the deceased. Consequently, the order of the trial Court that she be accommodated and taken care of from the proceeds of the estate of the deceased is also a misconception in law as it borders on sentiments. The law is fairly settled that, the duty of the Courts is to do justice according to the laws applicable to the particular cases brought before them after the due assessment and evaluation of the evidence led by the parties. For the Courts are Courts of law and sentiments have no space at all in judicial decisions. On this legal position, the Supreme Court had the following to say in the case of: Ezeugo v. Ohanyere (1978) LPELR 24888:
”In this particular case, the Judge’s task was not to discover the intentions of each party, it is to decide what each was reasonably entitled to conclude from the attitude of the other (per Lord Devlin in McCutcheon v. David MacBrayne Ltd. (1964) 1 WLR 125 at 134). Sentiments command no place in judicial deliberations for if it did, our task would be infinitely more difficult and less beneficial to the society.
See also the cases of: (1) Umanah v. NDIC (2016) LPELR-42556 (SC); (2) Okpe v. Fan Milk Plc & Anor. (2016) LPELR-42562 (SC) and (3) PML (Nig.) Ltd. V. FRN (2017) LPELR-43480 (SC).
Consequent upon the foregoing analysis, it is only right to conclude and I so do, that, the order of the trial Court under scrutiny were made erroneously, without jurisdiction and indeed contrary to natural justice, particular as the parties were not given the opportunity to ventilate their views on the subject of same before it was made. In the case of: Falomo v. Lagos State Public Service Commission (1977) LPELR-1238, the Supreme Court per Idigbe, J.S.C. (of blessed memory) held on this issue as follows:
When an order is made which affects the proprietary rights of individuals and no opportunity is given prior to the making of the order to the affected party to show cause why the order should not be made AND THE ORDER IS FINAL, it will be held to be contrary to natural justice.
The law is trite that, the effect of an order of Court made without competence and jurisdiction is that the order is a nullity. It is equally the law that, if an order of a lower Court is a nullity, it can be set aside by an appellate Court without much ado. See the cases of: Oke & Ors. V. Aiyedun (1986) LPELR-2427 (SC); (2) Okoye & Ors. V. Nigerian Construction & Furniture Co. Ltd. & Ors. (1991) LPELR-2509 (SC); (2) Onwuka v. Ononuju & Ors. (2009) LPELR-2721 (SC) and (4) PDP & Ors. V. Ezeonwuka & Anor. (2017) LPELR-42563 (SC).
The order of the trial Court under scrutiny is indeed most precarious because it was made against the Administrator General and Public Trustee of Enugu State who was not a party to the action before the trial Court. The law is on solid ground and it is almost unnecessary to cite judicial authorities to buttress the legal principle that, a Court has no power to make orders either in favour of or against persons who are not parties to an action. See the cases of: Uku v. Okumagba (1974) 1 All NLR p.475; (2) Cotecna Intl. Ltd. V. Churchgate Nig. Ltd. & Anor. (2010) LPELR-897 (SC); (3) Oyeyemi & Ors. V. Owoeye & Anor. (2017) LPELR-41903 (SC); (4) Makarfi & Anor. V. Poroye & Ors. (2016) LPELR-41296 (CA). In the case of: Makarfi & Anor. V. Poroye & Ors. (supra), this Court per Mbaba, JCA made the following very pointed observations on this issue:
See the case of Ayoade v. Spring Bank (2014) 4NWLR (Part 1396) 93 at 132, where this Court held: ”it is trite that a Court has no power to make orders either in favour of or against persons who are not parties to an action?.The trial Court must be reminded that justice is only meaningful where it is done within the parameters of laid down rules and not based on the whims and caprices of individual Judges. The Court room is, not like the kings Court in the traditional African society where the king did as he wanted A Court’s decision must be founded on law and evidence before the Court and in keeping with sound legal principles and tradition? See Ogolo v. Ogolo (2003) LPELR-2309 (SC)”.
The same principle also applies, to vitiate an order of Court made to operate against a person not joined as a party to a suit and who is not privy to an action. See again Ayoade v. Spring Bank (supra), where we held. ?One of the cardinal requirements of laws to imbue a Court with jurisdiction to hear a case, is that the parties /persons to be affected by its decision must be duly summoned/served with the process of Court and given opportunities to be heard/defend themselves. That is an inalienable constitutional right of every person. See Section 36(1), (3) and (6) of the 1999 Constitution as amended. See the cases of SLB Consortium Ltd. V. NNPC (2011) 9NWLR (part 1252) 317; British American Tobacco Nig. Ltd. Vs. Int’I Tobacco Co. Plc. (2012) 39 WRN 60, (2013) 2NWLR (part 1339) 3493. See also IBWA v. Kennedy Trans. Nig. Ltd. (supra); Green v. Green (1987) 13NWLR (part 61) 481.
Consequent upon the foregoing analysis by me, the order of the trial Court under scrutiny is declared invalid, null, void and of no effect whatsoever having been made without jurisdiction.
It is obvious that, the issues identified by the Appellant are resolved in her favour and against the Respondent. Thus, the appeal is imbued with success and accordingly allowed.
The following orders made in the judgment of the trial Court delivered on 3rd of March, 2015 are accordingly set aside, to wit:
Since Dr. John Ikechukwu Nebuwa INTESTATE (sic) and there is struggle on who collects the letter(sic) of Administration to administer his Estate, this Court hereby Orders the petitioner to hand over the Administration of the personal and Real Estate (sic) of the deceased, Dr. John Ikechukwu Nebuwa to the Administrator General and Public Trustee, Ministry of Justice Enugu.
The said Administrator general (sic) will invoke the principle of equity and accommodate the interest of the Respondent, at least for life, NOT AS THE LEGAL WIFE of Late Dr. John Nebuwa but for the services she rendered to the deceased during his last days on earth.
Concomitantly, relief (ii) sought by the Appellant in her petition against the Respondent at the trial Court is granted in the following terms:
It is hereby ordered that Ozougwu Dominica Nnenna who also goes by the names, Mrs. Nnenua Nebuwa is not entitled to be a beneficiary or an executor of the estate of Late Dr. John Ikechukwu Nebuwa who died intestate on 5th of December, 2011.
I make no order for costs.
JAMES SHEHU ABIRIYI, J.C.A.: I read in advance in draft the lead judgment just delivered by my learned brother OYEBISI FOLAYEMI OMOLEYE JCA. He has exhaustively dealt with the issues for determination. I adopt the reasoning and conclusion in the lead judgment as my own.
For the reasons contained in the lead judgment. I too allow the appeal.
I abide by all the orders in the lead judgment including the order as to costs.
SAIDU TANKO HUSSAINI, J.C.A.: I read in advance the lead Judgment just delivered by my noble Lord Oyebisi Folayemi Omoleye, JCA and I agree in toto with the reasoning and conclusions arrived thereat. My Lord in the lead Judgment has addressed all the salient points raised in this appeal and rightly resolved those issues in favour of the Appellant.
The union in marriage between the Appellant and her deceased husband, Dr. John Ikechukwu Nebuwa, was a marriage or union contracted under the Marriage Act, which, till death do us part, does not permit the parties to it, to contract any other marriage, whether Statutory or under the Native Law and custom, as the respondent purportedly did. Such subsequent marriage is of course, null and void.
The purported marriage of the respondent to Dr. J. I. Nebuwa, now late, is a farce and the trial Court rightly declared it to be a nullity.
One of the incidents of Marriage is right of cohabitation between the couple. The other of course, is the right of the party to the marriage to inherit the other in the event of the demise of that other partner. The respondent, not being the wife of Dr. J. I. Nebuwa, under the Marriage Act, has no right of succession to the estate of the deceased person and any order made in that regard which make it possible for the respondents to benefit from the estate of the deceased is clearly wrong and must be set aside. It is for these and the more detailed and more comprehensive reasoning in the lead Judgment that I too allow this appeal.
Appearances:
P. S. Nwajagu, Esq. with him, Miss Jovita IbekweFor Appellant(s)
Respondent was absent and unrepresented by counsel, although the Respondent was
personally served with hearing notice.For Respondent(s)
