MRS. BRIDGET MOTOH & ANOR v. EMMANUEL MOTOH
(2010)LCN/4160(CA)
In The Court of Appeal of Nigeria
On Thursday, the 16th day of December, 2010
CA/E/388/2007
RATIO
AMENDMENT OF PLEADINGS: EFFECT OF THE FAILURE OF A PARTY TO FILE AN AMENDED PLEADING WITHIN THE STIPULATED TIME HE HAS BEEN GRANTED LEAVE TO AMEND HIS PLEADING
It is the law that where leave to amend pleading within a stipulated time is granted to a party and the party fails to file an amended pleading, his case will be considered on the pleading not amended. See Amam (Nig.) Ltd. v. Leventis Motors Ltd. (1990) 5 NWLR pt. 151 page 458. PER ABDU ABOKI, J.C.A.
SUBSTITUTION OF PARTIES TO AN ACTION: DUTY IMPOSED ON A PLAINTIFF WHERE NEW PARTIES ARE BROUGHT BY SUBSTITUTION ON THE APPLICATION OF THE PLAINTIFF AS DEFENDANTS
I am of the opinion that where new parties are brought by substitution on the application of the plaintiff as defendants, the plaintiff has a duty to amend his pleadings to reflect their link to, or connection or nexus with the dispute. The plaintiff has a duty to show that the new defendants have a duty or obligation to defend the case. A person who is not a party to a suit has no locus standi to aver facts in the pleadings of a party to the suit, in response to the averments of the adverse party. See Buhari v. Obasanjo (2005) 2 NWLR pt. 910 page 241. PER ABDU ABOKI, J.C.A.
UNPLEADED FACT: EFFECT OF EVIDENCE LED ON UNPLEADED FACT
It is trite law that evidence led on a fact not pleaded goes to no issue, such evidence if inadvertently admitted will be expunged. See Amobi v. Amobi (1996) 1 NWLR pt. 469 page 635. PER ABDU ABOKI, J.C.A.
PLEADINGS: AIM OF FILING PLEADINGS
In George & Ors. v. Dominion Flour Mills Ltd. (1963) 1 All NLR 71 at 75, the Supreme Court said:- ‘The fairness of a trial court can be tested by the Maxim audi altertm partem either party must be given an opportunity of being heard, but a party cannot be expected to prepare for the unknown; and aim of pleadings is to give notice of the case to be met, which enable either party to prepare his evidence and arguments upon the issues raised by the pleadings, and save either side from being taken by surprise’. See also Ahiemeka Emegokwue v. James Okadigbo (1973) 4 SC 113. Bunge v. Governor Rivers State (2006) 12 NWLR pt.995 page 573 at 598-599. PER ABDU ABOKI, J.C.A.
UNPLEADED FACTS: WHAT IS THE RATIONALE BEHIND THE PRINCIPLE THAT FACTS NOT PLEADED GO TO NO ISSUE
In Okoko v. Dakolo (2006) 14 NWLR pt. 1000 page 401 at 436. The Supreme Court said per Tobi JSC:- ‘The law is not only trite but most elementary that facts not pleaded go to no issue. The rationale behind this principle of law is that by now adversary system of Civil Procedure in the High Court, facts are first erected in the pleadings before the trial of the case. This is to enable the parties not to spring surprise at the trial and to narrow down the area of disagreement so that parties will not think the sky is the limit in the production of facts in the matter before the court, subject to the fairly liberal rules of amendment of pleadings, parties are bound by their pleadings while a party is free to apply for the amendment of his pleadings once the amendment find themselves in the just state of pleadings, the party is bound by them and he cannot move out of them in search of greener facts completely outside the ones duly pleaded. PER ABDU ABOKI, J.C.A.
JUSTICES
AMINA ADAMU AUGIE Justice of The Court of Appeal of Nigeria
MOHAMMED L. TSAMIYA Justice of The Court of Appeal of Nigeria
ABDU ABOKI Justice of The Court of Appeal of Nigeria
Between
1. MRS. BRIDGET MOTOH
2. MR. CHUKWUNYELU MOTOH
(SUBSTITUTED FOR THE ORIGINAL DEFENDANT, MRS MERCY MOTOH) Appellant(s)
AND
EMMANUEL MOTOH Respondent(s)
ABDU ABOKI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of Umegbolu Nri-Ezedi J. of the High court of Anambra State sitting at Awka, delivered on 18th July, 2005.
The Respondent was the plaintiff at the lower court while the Appellants were substituted for the original defendant.
The dispute before the lower court relates to the estate of late Jeremiah Anagor Motoh who died intestate.
The brief facts of the case are as follows:-
The plaintiff claimed before the lower court that his mother Gloria Mgbogafor Motoh was married to Jeremiah Anagor Motoh as his second wife. The first wife was Mercy Nwojini Motoh (or Nwojinika or Ojinika), and had 6 daughters for the late Jeremiah Anagor Motoh. It was alleged that she had no male issue. The plaintiff’s mother claimed that she has two children, the plaintiff and his sister Joy who survived the late Jeremiah Angor Motoh who died in 1962. The plaintiff alleged that he and his mother were excluded from the estate of Jeremiah Anagor Motoh who died intestate. The plaintiff alleged that since Mercy Nwojini’s death the defendants have driven him and his mother out of his father’s Obu or compound at Awka.
Mercy Nwojini Motoh, the defendants, claimed before the lower court that she was the only wife lawfully married to Jeremiah Anagor Motoh and that they wedded at St. Faith’s Cathedral Church Awka. Gloria Mgbogafor Motoh was said to have lived with Mercy Nwojini Motoh and Jeremiah Anagor Motoh as a maid. When she became pregnant, she was driven away.
Mercy Nwojini Motoh had six daughters and two sons for Jeremiah Anagor Motoh. The names of the two sons were Chukwuemeka and Nwankwo. Jeremiah Anagor Motoh died in 1962 and was survived by Chukwuemeka.
During the Nigerian Civil War, Chukwuemeka married the first defendant at Okoh town and they had their first child, the second defendant, at Okoh. Chukwuemeka was conscripted into the army during the civil war and never returned home. The second defendant, her son and Mercy Nwojini Motoh her mother in law came back to Awka after the civil war and lived at No. 76 Enugu Road Awka now known as No. 82 Nnamdi Azikiwe Avenue Awka the compound of Jeremiah Anagor Motoh. The first defendant had other children who have all been living at No. 82 Nnamdi Azikiwe Avenue Awka since then.
Mercy Nwojini Motoh and Sylvanus, a brother to Jeremiah Anagor Motoh applied for and obtained Letters of Administration in respect of the estate of Jeremiah Anagor Motoh. Mercy Nwojini Motoh who died in 1992 made a Will.
The plaintiff claimed that when Jeremiah Anagor Motoh’s house at No. 3 Pampam Lane, Onitsha also called Ogbe Hausa (or Ogbe Awusa) was given out on lease after the death of Jeremiah Anagor Motoh, the money realized was shared between Mercy Nwojini Motoh and Gloria Mgbogafor Motoh his mother. This was as a result of pressures mounted on Mercy Nwojini Motoh that Gloria Mgbogafpr should be rewarded for her services to the family. Mercy Nwojini granted a room in the house at No. 3 Pam Pam Lane Onitsha to the plaintiff s mother to live in.
The defendant denied participating in a customary court case and in a customary arbitrations.
The Plaintiff commenced the action at the lower court by a writ of summons dated 16/11/88 and filed the same date. While the statement of claim dated 6/01/89 was filed on 13/01/89. The plaintiff who is now the respondent before this court claimed against the defendant as follows:-
‘a. A declaration that the plaintiff is the Okpala and indeed the only male issue of the late Jeremiah Anagor Motoh and as such entitled to hold and manage the property of the late Jeremiah Anagor Motoh according to the custom of Umuanaga village Awka.
b. A declaration that No. 76 Enugu Road, Awka is the Obu or Okpuno or Country home of the late Jeremiah Anagor Motoh and therefore should be inherited by the plaintiff as the Okpala in accordance with the native law and custom of Umuanaga Awka.
c. An account of all the rents collected by the defendant from the property known as No. 76 Enugu Road Awka since the death of Jeremiah Anagor Motoh.
d. An account of all the monies realized from the sale of all the other landed properties of the late
Jeremiah Anagor Motoh and for the money to be handed over to the plaintiff
e. An order of injunction restraining the defendant from managing or interfering with the estate of the Iate Jeremiah Anagor Motoh in any manner inconsistent with the plaintiffs right as the Okpala of the said late Jeremiah Anagor Motoh’.
After a careful consideration of the evidence before it, the lower court gave judgment in favour of the plaintiff which inter alia reads as follows:-
‘From the evidence before me and in the circumstance of this case, it looks like the second defendant and his siblings have no other place to go to, or no other family to belong to except Jeremiah Anagor Motoh’s family.
That is the only family they know and have belonged to.
That is unfortunate. The maxim however has always been “let justice be done even if the heaven fall”. Justice has to be done to the plaintiff.’
‘From all I have said above the claim succeeds.
Accordingly I make the following orders’:-
(a) ‘A declaration that the plaintiff is the Okpala and only son of late Jeremiah Anagor Motoh and
entitled to hold and manage the property of late Jeremiah Anagor Motoh.
(b) A declaration that the plaintiffs entitled to inherit No. 82 Nnamdi Azikiwe Avenue Awka (formerly No. 76 Enugu Roael Awka) the Obu or country home of late Jeremiah Anagor Motoh.
(c) The second defendant, Chukwunyelu Motoh, shall render accurate and reasonable accounts of all rents collected by him to the plaintiff from No. 82 Nnamdi Azikiwe Avenue Awka as from the death of Mercy Nwojni Motoh within o reasonable time.
(d) A perpetual injunction restraining the defendants, their agents, or servants from managing or interfering with the management or acting in any manner inconsistent with the plaintiff s rights as the okpula of lute Jeremiah Anagor Motoh’.
Dissatisfied with the judgment of the lower court, the defendants now Appellants appealed to this court.
Learned counsel for the Appellant S.C. Unachukwu said that the Appellants brief of argument dated 30/10/08 was filed on 4/11/08. He adopted the brief of argument as the Appellants argument in this Appeal. He urged the court to set aside the decision of the lower court and allow the Appeal.
N.I.N.A. Egwuonwu learned counsel for the Respondent told the court that the Respondent’s brief of argument was filed on 15/1/09 and deemed filed on 18/3/09. He adopted the Respondent’s brief of argument as their argument in this appeal and he urged the court to dismiss the appeal.
The Appellants from their six Grounds of Appeal in the Notice of Appeal distilled four issues for determination as follows:-
1. ‘Considering the state of the pleadings of the parties and admissible evidence did the plaintiff/respondent prove that he was o child of late Jeremiah Anagor Motoh and therefore entitled to inherit his estate? (grounds 1 and 2).
2. Was the trial court right in as decision that the Defendants/Appellants should give account of rents collected from No. 76, Enugu Road, Awka when they were put in possession by the original Defendant/Appellant in the exercise of the powers conferred on her as personal representative of late Jeremiah Anagor Motoh per u valid letters of Administration that were never invalidated or revoked. (ground 4).
3. Was the trial court right in its order of perpetual injunction re straining the defendant/appellants who were validly put in possession by the original defendant/appellant in the exercise of the letters of Administration without a fresh letter of administration either applied for nor granted to the respondents? (ground 5).
4. In the light of the pleadings by both parties, was the evidence properly evaluated by the trial court? (grounds 3 and 6)’.
The Respondent formulated three issues and also adopted the fourth issue formulated by the Appellants, as his fourth, and they read as follows:-
(1) ‘Considering the state of the pleadings, of the parties and admissible evidence, did the plaintiff/respondent prove that he was a child of late Jeremiah Anagor Motoh and therefore entitled to inherit his estate? (grounds 1 and 2),
(2) Was the trial court right in its decision that the Defendants/Appellants should give account of rents collected from No. 76 Enugu Road, Awka? (ground 4).
(3) Was the trial court right in its order of perpetual injunction restraining the defendants/appellants for managing or interfering with the management or acting in any manner inconsistent with the plaintiff’s rights as the Okpala of late Jeremiah Anagor Motoh?.
(4) In the light of the pleadings by both parties, was the evidence properly evaluated by the trial court? (grounds 3 and 6)’.
I have carefully perused the four issues submitted each by the parties for determination in the appeal, they seem to me to be identical. I will however prefer the issues as couched by the Appellants and I adopt same for the determination of this appeal. I would however like to point out that both parties did not present any argument in respect of the 4th issue and same is deemed abandoned.
ISSUE ONE:
‘Considering the state of pleadings of the parties and admissible evidence, did the plaintiff/respondent prove that he was a child of late Jeremiah Anagor Motoh and therefore entitled to inherit his estate’,
It has been submitted on behalf of the Appellant that a consideration of this issue is tied to the state of the pleadings of the parties and the evidence led by both parties.
Learned counsel for the Appellant argued that the party who has the burden to prove a valid marriage between late Jeremiah Anagor Motoh and the Respondent’s mother by necessary consequences owed the attendant burden to prove that the earlier marriage between late Jeremiah Anagor Motoh and Mercy Nwojini Motoh was a customary marriage.
He maintained that this is inevitable, if the marriage between late Jeremiah Anagor Motoh and Mercy Nwojini is statutory, then the marriage allegedly contracted by late Jeremiah Anagor Motoh to the Respondent’s mother during the subsistence of the earlier marriage would be a nullity – Section 5 of the Marriage Act. Consequently, the Respondent could not in law be the child of late Jeremiah Anagor Motoh and therefore not entitled to the declarations sought. He referred to the cases of Mrs Esther A. Osho & Ors. v. Gabriel A. Phillips (1972) All NWLR 279.
Makein v. Makein (1955) 1 All E.R. 57. Agbeja v. Agbeja (1985) 3 NWLR pt. 11 page 11.
Halsbury’s Laws of England, 3rd Edition vol. 16 page 395.
He maintained that the Respondent neither pleaded that the earlier marriage between late Jeremiah Anagor Motoh and Mercy Nwojini Motoh was customary nor did he lead evidence to show that it was customary.
Learned counsel for the Appellant contended that the mother of the Respondent who testified as PW1 said at page 80 of the Record of Appeal that she did not know the kind of marriage between late Jeremiah Anagor Motoh and Mercy Nwojini Motoh. Pw4 or page 95 also said the same thing while PW2 at page 195 of the Record of Appeal said that he did not know whether late Jeremiah Anagor Motoh wedded in St. Faith’s church in 1930.
Learned counsel submitted that the evidence that the late Jeremiah Anagor Motoh married the Respondent’s mother as second wife is of no value unless it is proved by him that the marriage was customary.
He submitted that without discharging this burden, the evidence of the birth of the Respondent during the lifetime of late Jeremiah Anagor Motoh is of no moment.
Learned counsel argued that on the contrary, it was the case of the Appellants that Mercy Nwojini Motoh and late Jeremiah Anagor Motoh wedded at St. Faith’s Anglican Church Awka in 1930. At paragraph 4 of the Statement of Defence, it was pleaded:
‘4 The defendant admits paragraph 3 of the Statement of Claim but denies that late Jeremiah Anagor Motoh married two wives, In further answer thereto, the defendant/appellant avers that the said Jeremiah Anagor Motoh married only the defendant/appellant as his wife and this was s statutory marriage done in accordance to Christian religious rites at St. Faith’s Anglican Church Awka in 1930′.
He maintained that this pleading was confirmed by the evidence of at pages 124 – 125, who personally witnessed the wedding. This evidence was also confirmed by PW2 at page 84 and 93 of the Record of Appeal.
Learned counsel argued that if late Jeremiah Anagor Motoh wedded Mercy Nwojini Motoh, then that is statutory marriage. Customary marriage he contended does not entail wedding. He urged the court to take as a notorious fact the use of the language “wedding” in Nigerian parlance as only referring to statutory marriage. Learned counsel contended that PW1 who is the mother of the Respondent confirmed that Mercy Nwojini Motoh was already married to late Jeremiah Anagor Motoh and had children before she subsequently got married to him and that she emphatically said that she did not know the type of marriage late Jeremiah Anagor Motoh had with Mercy Nwojini Motoh. He submitted that where there is no minimal evidence describing the statutory marriage between late Jeremiah Anagor Motoh and Mercy Nwojini Motoh which had been confirmed by the evidence of the Respondent own witnesses. PW2 and PW3, the “marriage” between late Jeremiah Anagor Motoh and the Respondents’ mother cannot be valid, since the marriage between late Jeremiah Anagor Motoh and the Respondent’s mother is a nullity, the Respondent cannot be a child of late Jeremiah Anagor Motoh.
Learned counsel for the Appellant argued that the evidence of alleged customary marriage between Respondent’s mother and late Jeremiah Anagor Motoh is not supported by the pleading. He contended that all the evidence of PW1 and PW2 and PW3 on the alleged customary marriage. carrying of drinks to the family of Respondent’s mother, payments of dowry and presentation of the Respondent’s mother to his family as a wife by late Jeremiah Anagor Motoh go to no issue as they have not been pleaded.
Learned counsel insisted that custom is a fact which must be pleaded and proved, consequently, customary marriage is a fact that must be pleaded and proved. The particulars of the customary marriage must be pleaded and then substantiated by evidence. He argued that without pleading, any evidence given to show particulars of this customary marriage’, goes to no issue.
Learned counsel submitted that it is not enough to state that late Jeremiah Anagor Motoh and the Respondent’s mother were married. He maintained that fie kind of marriage and particulars of the marriage must be pleaded and proved in evidence. He argued that no such pleading was made by the Respondent.
Learned counsel for the Appellant submitted that the Respondent did not prove that he was a child of late Jeremiah Anagor Motoh. He argued that if the Respondent is not a child of late Jeremiah Anagor Motoh, then he is not entitled to the declarations sought and wrongly granted in reliefs (a) and (b) of the Statement of Claim.
Learned counsel submitted that where a man married under the statute dies intestate, his estate is only inheritable by the wife and the children born by the wife. He referred the court to the cases of Esther A. Osho v. Gabriel Philips (supra) and Section 36 of the Marriage Act. Cap 115 Laws of the Federation of Nigeria 1958.
Learned counsel maintained that if a person who is married under the Act dies intestate, his properly will be distributed in accordance with the law governing the distribution of the person’s estate of an intestate in England.
Under the English rule of intestacy, it is submitted, the estate of the deceased is inheritable by the wife and her children if any.
Learned counsel further submitted that since the marriage of the Respondent’s mother and his birth occurred before the 1979 and 1999 constitutions the provisions prohibiting illegitimacy are inapplicable to this case, and that the applicable law is the Marriage Act Cap 115 Laws of the Federation of Nigeria, 1958.
Learned counsel for the Appellant urged the court to resolve issue 1 in the Negative.
It was argued on behalf of the Respondent that in paragraph 1(b) of his Reply to the Statement of Defence denied the existence of a statutory marriage between his father and Mercy Nwojini Motoh.
Learned counsel for the Respondent argued that the Onus is therefore on the appellants to prove that the marriage between Mercy Nwojini Motoh and Jeremiah Anagor Motoh was statutory. He contended that the onus was not discharged. Learned counsel argued that the particulars of the alleged statutory marriage were not pleaded and no documentary evidence in form of a marriage certificate was tendered in the court by the appellants. He argued that the nature of the marriage contracted between Mercy Nwojini Motoh and Jeremiah Anagor Motoh was not an issue before the trial court. Learned counsel submitted that the Respondent has no duty to plead or give evidence to the effect that the earlier marriage between his father and Mercy Nwojini Motoh was customary. He argued that apart from the fact that the issue was never raised or discussed before the lower court, it is an obvious conclusion that the marriage between Jeremiah Motoh and Mercy Motoh was customary, in the absence of any credible evidence of a statutory marriage tendered by the appellants.
Learned counsel for the Respondent submitted that the cases of Mrs Esther A. Osho & Ors. v. Gabriel A. Philips (supra). Makein v. Makein (supra). Agbeja v. Agbeja (supra) referred the court by the learned counsel for the Appellants are in appropriate to the case.
He argued that the issue of the nullity of the Respondents mother’s marriage was never raised in the pleadings of the parties or discussed during trial in the High Court.
Learned counsel maintained that it is settled law that a party cannot make a case different from his pleading and that it is not only the parties that are bound by their pleadings, but courts also. He referred the court to the case of UBN Plc & Anor. v. Ayodare & Sons Nig. Ltd. & Anor (2007) All FWLR pt. 383 page 1 at 26.
He insisted that the issue of the nullity of the marriage of the Respondent’s mother was not covered by any of the Grounds of Appeal or the issues for determination in this Appeal.
Learned counsel for the Respondent submitted that the Respondent’s mother was validly and lawfully married to Jeremiah Anagor Motoh. He maintained that this fact was pleaded in paragraphs 3 and 5 of the Statement of claim and in paragraph 1(g) of the Reply to the Statement of Defence.
He argued that the Respondent’s witnesses pw1, pw2 and pw3 gave credible evidence confirming the marriage between the Respondent’s mother and Jeremiah Anagor Motoh and that the trial court rightly believed their testimonies.
Learned counsel submitted that from the totality of the evidence led by the Respondent and his witnesses, the trial court was right to hold that the Respondent’s mother was validly and lawfully married to Jeremiah Anagor Motoh. He further submitted that the Respondent had proved that he was a child of late Jeremiah Anagor Motoh and was therefore entitled to inherit his estate. He argued that the relationship between the Respondent and Jeremiah Anagor Motoh was pleaded in paragraphs 3 and 5 of the Statement of Claim and in answer thereto, the original defendant admitted in paragraph 6 of her Statement of Defence that she had only six female children. He argued that the effect of this is that she had no male child for Jeremiah Anagor Motoh. He insisted that this is a serious admission against interest.
He referred the court to the case of Kamalu v. Umunna (1997) 50 LRCN 1344 at 1366.
Learned counsel for the Respondent maintained that the Respondent and his witnesses gave evidence which were not contradicted, establishing the relationship of father and son between Jeremiah Anagor Motoh and the Respondent. And that the evidence of Appellants’ witnesses supported the case of the Respondent. He argued that DW4’s testimony at page 144 of the Record of Appeal stated that the Respondent and his mother lived in the property of Jeremiah Anagor Motoh at No. 3 Pam Pam Lane Onitsha as of right.
Learned counsel for the Respondent maintained that the custom of Awka on inheritance was pleaded in paragraph 6 of the Statement of Claim and that by the custom, it is the only son or the first son of a man who died intestate that is entitled to inherit the estate of the deceased man, while the Appellant denied the said custom and contended that it is the wife of the man who died intestate that is entitled to inherit his estate.
Learned counsel argued that it is clear that the parties joined issue on the custom of Awka on inheritance and not on any other law, including the marriage Act.
He maintained that the land in dispute in the instant case is the Obu or Compound of late Jeremiah Anagor Motoh and that by general Igbo customary law and that of Awka, it is the first son who is entitled to inherit or inherits. He referred the court to the case of Ezeokufor v. Ubah (1975) 5 UILR pt.11 page 162.
Learned counsel argued that the evidence of DW3 (the 2nd Appellant) At page 130 of the Record of Appeal supported the case of the respondent on inheritance.
He argued that the evidence given by the appellants and their witnesses on the other hand on the issue is at variance with their pleading and therefore it goes to no issue. He referred the court to the case of Mohammed B. Klargester Nig. Ltd (2002) FWLR pt. 127 page 1078 at 1096.
Learned counsel referred to the testimony of DW1 at page 138 and DW4 at page 143, and submitted that having proved the existence of a marriage between Jeremiah Anagor Motoh and his mother and the fact that Mercy Nwojini Motoh had no son, and lastly that Jeremiah Anagor Motoh died intestate, leaving him as his only son,, the Respondent is entitled to inherit the land in dispute, and the trial court was right when it declared the Respondent as the person entitled to inherit the land in dispute.
Learned counsel for the Respondent argued that the Appellants did not prove that Mercy Nwojini Motoh contracted a statutory marriage and also never pleaded the provisions of the marriage Act, as it relates to inheritance or distribution of the estate of a deceased man, nor was it raised during the trial. He urged the court to expunge and discountenance all the issues raised by the appellants in this appeal which were not discussed in the High Court.
Learned counsel submitted that the Respondent had proved that he is a child of Jeremiah Anagor Motoh and that he is entitled to inherit his estate.
He urged the court to uphold the irresistible findings and decision of the trial court in that regard and to resolve the issue in favour of the Respondent and against the Appellants.
It is not in dispute that the consideration of this issue is tied to the state of pleadings of the parties and the evidence led by both parties. It is for this reason that the pleadings filed by the parties would have to be examined and they are hereby reproduced for ease of reference. The Statement of Claim dated 6th January, 1989 and filed 13th January, 1989 reads as follows:-
SUIT NO. AA/165/88
BETWEEN
EMMANUEL MOTOH PLAINTIFF
AND
MRS. MERCY NWOJINI MOTOH DEFENDANT
STATEMENT OF CLAIM
‘1. Plaintiff is a trader and lives at No. 3 pam pam Lane Onitsha within the jurisdiction of this Honourable Court. He is the only son of the Iate Mr. Jeremiah Anagor Motoh.
2. The defendant is a widow of the said late Mr. Jeremiah Anagor Motoh and lives at No. 76 Enugu Road Awka also within jurisdiction.
3. The late Jeremiah Anagor Motoh who married two wives, the defendant and Mrs Gloria Mgbogafor Motoh (Plaintiffs mother during his life time hails from Umuanaga village Agulu Awka and died intestate about January 1962 and was subject to the native laws and customs of Umuonaga Awka.
4. The late Jeremiah Anagor Motoh owned many landed property including No. 3 Pam Pam lane Onitsha, No. 76 Enugu Road Awka and his share of the family land located at Awka owned jointly with his brothers.
5. The defendant had 6 (six) female children for plaintiffs father, namely Edna, Chinwe, Oge, Grace, Okeutyanwu and Ngozi while plaintiff’s mother had plaintiff and Joy.
6. By the native law and custom of Awka, a man’s only son is entitled to inherit the state of his deceased father on intestacy and to maintain his sister and wives of his deceased father from the proceeds of the estate until the sisters are all married.
7. After the death of the plaintiffs father, the defendant started denying the plaintiff and his mother of their entitlements in plaintiffs father’s properties at Awku.
8. The matter was taken to the District Court Grade “A” of Mbailinofu. The Court delivered its verdict on the 27th September, 1965 upholding the custom of Awka that plaintiff is entitled to succeed his late father as the plaintiff is the only son of the late Jeremiah Anagor Motoh. The said judgment is hereby pleaded and shall be founded upon at the trial.
9. The defendant in defiance of the District customary court’s orders persisted in excluding the plaintiff, his mother and sister from sharing in the late Jeremiah Anagor Motoh’s estate. Defendant in 1977 sold the family’s piece of land situate at Ishi-Oye and kept the money to herself despite the Umuanaga village resolution that the money be shared.
10. The plaintiff took this issue of exclusion from the enjoyment of the estate of the late Jeremiah Anagor Motoh to Umuanaga village.
The village after hearing the parties, on the 20th February, 1978 at Ndaguba’s Obu delivered its resolution. The village arbitration was reduced into writing and shall be founded upon at the trial of this suit.
11. The plaintiff further says that the only part of his late father’s estate he shares with defendant and her children is the house at No. 3 Pam Pam Lane Onitsha. The house was in 1975 leased to one Mr. Peter Nnadi and a receipt dated 5th March, 1975 was jointly issued by the plaintiff, his mother and the defendant. A copy of the said receipt is hereby pleaded and shall be founded upon at the trial. The money was shared into two equal halves between the plaintiff’s mother and the defendant.
12. Throughout the life time of the late Jeremiah Anagor Motoh the plaintiff was recognized by him as the Okpala and indeed the only son of the deceased and also as his heir. The plaintiff continued to be recognized as such even after the death of his father.
13. The defendant has in defiance of the native law and custom of amuanaga village Agulu Awka continued to manage the property of the late Jeremiah Anagor Motoh n the exclusion of the plaintiff. Sometimes in 1979 the brothers of the late Jeremiah Anagor Motoh sold a piece of land they owned jointly with plaintiffs father. His share was handed over to the defendant and she refused to hand it over to plaintiff or share it.
14. In 1977 following the insistence of the “umunna” that it was the plaintiff who was entitled to inherit No. 76 Enugu Road Awka as the property was his father’s country home, the plaintiff put in a certain tenant called James Omenska who paid N72. Plaintiff issued a receipt dated 9/10/77 to the said James Omenaka. The said receipt is hereby pleaded. Plaintiff divided the money into two giving the defendant N36 and other N36 to his mother.
15. The plaintiff later caused his Solicitor D.C. Obiekie Esq to write to the defendant about her conduct. The plaintiff shall at the trial rely on his Solicitor’s letter dated 30/1/87 and the defendant is hereby given notice to produce the original of the said letter.
16. The defendant replied to the plaintiff through his Solicitor J.N.I. Ezekwem. The defendant in the said letter to the astonishment of the plaintiff said that she does not know what plaintiff wanted.
17. The Plaintiff will at the trial rely on the terms of settlement in suit No.0/152/81 dated 20/11/85 where the plaintiff acknowledged that the rent from the property known as No. 3 Pam Pam Lane Onitsha, which forms part of the estate of Jeremiah Anagor Motoh shall be shared between his mother and the defendant.
18. The defendant has refused to recognize the plaintiffs interest and right over the property known as No. 76 Enugu Road Awka’,
WHEREFORE the plaintiff claims against the defendant as follows:-
‘(a) A declaration that the plaintiff is the Okpala and indeed the only mule issue of the late Jeremiah Anagor Motoh and as such entitled lo hold and manage the property of the late Jeremiah Anagor Motoh according to the custom of umuanaga village Awka.
(b) A declaration that No. 76 Enugu Road Awka is the Obu or okpuno country home of the late Jeremiah Anagor Motoh and therefore should be inherited by the plaintiff as the Okpala in accordance with the native law and custom of Umuanaga Awka.
(c) An account of all the rent collected by the defendant from the property known as No. 76 Enugu Road Awka since the death of Jeremiah Anugor Motoh.
(d) An account of all the monies realized from the sale of all the other landed properties of the late Jeremiah Anagor Motoh and for the money to be handed over to the plaintiff
(e) An order of injunction restraining the defendant from managing or interfering with the estate of the late Mr. Jeremiah Anagor Motoh in any manner inconsistent with the plaintiffs rights as the Okpala of the said late Jeremiah Anagor Motoh’.
Dated at Onitsha this 6th day of January, 1989.
SGD.
D.C. Obiekie Esq.
Plaintiff’s Solicitor.
The Statement of Defence at page 5 – 7 of the Record of Appeal is dated 17th April, 1989 and filed on 19th April, 1989 is adumberated thus:-
SUIT NO. AA/165/88
BETWEEN:
EMMANUEL MOTOH PLAINTIFF
AND
MRS. MERCY NIYOJINI MOTOH DEFENDANT
STATEMENT OF DEFENCE
‘1. Except as hereinafter specifically admitted the defendant denies each and every fact contained in the statement of claim as if the same were set down paragraph by paragraph and denied seriatim.
2. The defendant vehemently denies paragraph 1 of the statement of claim and in answer thereto the defendant says the plaintiff is not and was never the son of Jeremiah Anagor Motoh.
3. The defendant admits paragraph 2 of the statement of claim-
4. The defendant admits paragraph 3 of the statement of claim but denies that the late Jeremiah Anagor Motoh married two wives. In further answer thereto, the defendant avers that the said Jeremiah Anagor Motoh married only the defendant us his wife and this was a statutory marriage done according to Christian religious riles at St. Faith’s Anglican Church Awka in 1930.
5. The defendant admits paragraph 4 of the statement of claim.
6. The defendant admits paragraph 5 of the statement of claim only to the extent it relates to her and her children but denies that the plaintiff is the son of Jeremiah Motoh or that his mother was the wife of the said Motoh.
7. The defendant denies paragraph 6 of the statement of claim and in answer thereto avers that the custom of the Awka people is that the wife of a man inherits his property at his death intestate where he has no son. All the female children of the intestate are also entitled to his property until they get married.
8. The defendant denies paragraph 7 of the statement of claim. In answer thereto, the defendant avers that Jeremiah Anagor Motoh was and is not the father of the plaintiff.
9. The defendant denies paragraph 8, 9 and 10 of the statement of claim. In answer thereto the defendant says that she was never a party to the said Mbailinofu District Court Grude ‘A’ Suit nor is she aware of same. The plaintiff is put to his greatest proof of the allegation.
10. In further answer to paragraph 8, 9 and 10 of the Statement of claim the defendant avers that the said Mr. Jeremiah Anagor Motoh in his life time gave Ishi-Oye land as absolute gift to Ogechukwu, his daughter and her husband. The land was never sold nor was any arbitration done on it.
11. The defendant further states that the defendant’s husband’s Umunna has consistently told the plaintiff that he is not a member of Motoh family and should go and find his father wherever he is.
12. The defendant denies paragraph 11 of the statement of claim and in answer thereto avers that the defendant vehemently protested and refused to allow the plaintiff to share in the said property or the proceeds therefrom hut after many people had pleaded with her to allow the plaintiff s mother a part of the proceeds as a compensation to the plaintiff s mother for the services she rendered to the defendant as q house help, the defendant obliged only on condition that the plaintiff and his mother will not later start laying claim to any other property of the late Mr. Jeremiah Anagor Motoh.
13. The defendant vehemently denies paragraph 12 of the statement of claim and in answer thereto avers that the defendant was never recognized by late Jeremiah Anagor Motoh as his son much less his Okpala.
14. The defendant further avers that the plaintiff s mother later became very way-ward and started running around with all sorts of men at Awka. The defendant, a religious person and married in an Anglican Church, did not tolerate this and insisted on the plaintiffs mother being sent home. The plaintiffs mother pleaded lo be of good behavior and was then allowed to stay.
15. The plaintiffs mother was taken to Onitsha in order to keep her away for sometime from her numerous boy-friends. Unfortunately at Onitsha she got medled up with some men again and in the process got pregnant and gave birth to the plaintiff. The plaintiffs mother was presurised to disclose the father of the plaintiff bat she could not as she kept calling one person after the other.
16. The plaintiff s mother was to be sent home but after much plea from people she was allowed to stay at Onitsha to deal on petty trading and earn some living for herself and her child. The plaintiff was never catered for by the defendant’s husband who consistently warned the plaintiff s mother against her prostitutions life, 17. The defendant denies paragraph 13 of the statement of claim and avers that the plaintiff has no claim to Motoh family’s property.
18. The defendant denies paragraph 14 of the statement of claim and in answer thereto avers that she put in the tenant, Mr. James Omanaka and collected the rent paid but did not share it with the plaintiff.
The defendant did not issue any receipt with the plaintiff nor is she aware that the plaintiff ever issued any receipt to the said James Omanaka.
19. The defendant further avers that after her husband’s death she applied through her solicitor S. N Adogu Esq, for a letter of administration which was issued in her name and that of Sylvanus Motoh the brother of the said Jeremiah Anagor Motoh. Since then, she has been managing the late Jeremiah Anagor Motoh’s property. The application for the letter of administration, was duly
publicized and the plaintiffs mother knowing the truth did not make any claim. The Eastern Nigeria Gazette No. 81 of 18/3/65 is hereby pleaded and will be relied upon at trial. The letter of administration dated 17/8/65 is also pleaded and will be relied upon at trial.
20. The defendant denies paragraph 15, 16 and 17 of the statement of claim and will at the trial subject the plaintiff to the strictest proof thereof, In answer thereto the defendant avers that she is not a party to the said Suit No.0/152/81 nor does she know anything.
21. The defendant denies that the plaintiff is entitled to the claim in paragraph 18 of his statement of claim or to any at all and will at trial ash the court to dismiss the suit as being frivolous, scandalous, immoral, vexatious and against Public policy’.
Dated this 17th day of April, 1989.
SGD.
C. ENEKWECHI ESQ.
Pp: J.N.I EZEKWE ESQ.,
SOLICITOR FOR DEFENDANT,
ENUGU ROAD AWKA.
The Respondent also filed reply to Statement of Defence dated 30th November, 2001 and filed 11th December, 2001, at pages 39 – 40 of the Record of Appeal is hereby reproduced thus:-
SUIT NO. AA/165/88
BETWEEN:
Emmanuel Motoh – plaintiff
AND
Mrs Bridget Motoh
Mr. Chukwunyelu Motoh
(Substituted for Mr. Samuel Jideobi)
REPLY TO STATEMENT OF DEFENCE
The Plaintiff joins issues with the Defendant on their statement of defence.
‘1. The plaintiff denies paragraphs 11, 15, 16, 17 and 20 of the statement of defence. In answer thereto the plaintiff slates as follows:-
(a) The plaintiff was well looked after by his father, Jeremiah Anagor Motoh, until he died. The plaintiff was a minor when the father died.
Plaintiff will at trial rely on his birth/baptismal records.
(b) The defendant, Mrs. Mercy Nwojini Motoh did not contract a statutory marriage as she alleged.
(c) The defendant, Mercy Nwojini Motoh was a party to the suit brought at the Mbailinofu District Court Awka. She attended Court during the proceedings and was present when the judgment was given.
(d) The suit al the Mbailinofu District Court Awku was commenced al the instance of the plaintiffs mother when the defendant, Mrs. Mercy Nwojini Motoh disputed the right of the plaintiff and his mother to inherit the land in dispute between the parties.
(e) The land al Ishi-Oye was never given as an absolute gift by Jeremiah Anagor Motoh to Ogechukwu and her husband. The land was sold by the defendant and the sale and the proceeds of the sale was a subject of an arbitration by the entire Umuanaga Village, Awka.
(f) The parties Umunna have never denied the plaintiffs membership of the Umunna (extended family). Instead, some of the members of the Umunna, namely Ikwunne Motoh, who colluded with the defendant wanted to disinherit the plaintiff of his property.
(g) The plaintiff’s mother was not a baby-sitter, or housemaid to the defendant. Plaintiff’s mother was duly married by late Jeremiah Anagor Motoh.
(h) The defendant had always recognized the plaintiff as the 1st son of late Jeremiah Anagor Motoh and had signed several documents with the plaintiff. The plaintiff will rely on the lease Agreement entered into between himself, his mother and the defendant on one part and Mr. Nnadi on the other part. Also the payment receipt issued lo Peter Nnadi will be relied upon during trial.
(i) The plaintiff s mother was not sent sway by Jeremiah Anagor Motoh at the request of the defendant. The plaintiffs mother was never wayward and she never had any child with any man other than her husband. Late Jeremiah Anagor Motoh.
(j) The plaintiff and his mother were not aware of any letter of administration purportedly granted to the defendant in 1965.
The plaintiff and his mother vehemently protested to the probate Registrars Enugu and Awka through their counsel when the Defendant wanted to secure o letter of administration in respect of the property in dispute. The plaintiff will rely on his counsel’s letters in this regard.
(k) The plaintiff further states that late Samuel Jideobi who substituted the defendant has not a member of Motoh family.
(l)The plaintiff avers that Mrs. Bridget Motoh is not the wife of Jeremiah Anagor Motoh, she was purportedly married by another Woman, the defendant. Plaintiff shall contend during trial that such woman to woman marriage is void’.
Dated this 30th November, 2001.
SGD.
N.I.N.A. Egwuonwu Esq.
Plaintiffs Counsel,
Attallah Egwuonwu Chambers,
Barristers & Solicitors,
62 Nnamdi Azikiwe Avenue.
Awke.
I have carefully perused the entire Record of Appeal from pages A – C and from 1 -245 as well as other pages after 245 which were not numbered.
It is observed that though some applications were filed for substitution e.g.:
(1) At page 20 is a Motion on Notice dated 7th July, 1994 but filed on 6/7/1994 to substitute Mr. Samuel Jideobu for Mrs. Mercy Nwojini Motoh (deceased) as the deceased legal representative.
(2) At page 23 is n Motion on Notice dated 21st October, 1994 and filed on 25/10/94 for an order of substituting Mr. Samuel Jideobu for Mrs. Mercy Nwojini Motoh (deceased) as the deceased’s legal Representative.
(3) At page 31 is a Motion on Notice doted 10th December, 1999 and filed on 15/12/99 for an order substituting Mrs Mabel Okeke “Motoh” and Chukwunyelu Okeke “Motoh” for Samuel Jideobu (deceased) defendants and his legal representatives’.
In all the three applications identified above, I am unable to locate in the Record of Appeal where the lower court granted the prayer or made the order for the substitution.
Even if the lower court had granted the prayer for substitution, it is observed that both the statement of claim and the statement of defence were not amended to reflect the names of the persons brought into the matter by the substitution. It is only the reply to the statement of defence that carried the new names substituted for Mercy Nwojini Motoh the original defendant in the matter.
It is the law that where leave to amend pleading within a stipulated time is granted to a party and the party fails to file an amended pleading, his case will be considered on the pleading not amended. See Amam (Nig.) Ltd. v. Leventis Motors Ltd. (1990) 5 NWLR pt. 151 page 458.
In the instant case, since the plaintiff had not amended his statement of claim to reflect the new defendants, his case will be considered as though no substitution has taken place and Mercy Nwojini Motoh though deceased remains the defendant in the case.
The legal consequence of such state of affair is that the pleading of the plaintiff is incompetent. Since he can only sue a living person not the dead.
Another fundamental vice affecting the plaintiffs pleading is that it did not contain any averment linking or connecting the new defendants to the dispute brought by him for adjudication.
I am of the opinion that where new parties are brought by substitution on the application of the plaintiff as defendants, the plaintiff has a duty to amend his pleadings to reflect their link to, or connection or nexus with the dispute. The plaintiff has a duty to show that the new defendants have a duty or obligation to defend the case.
A person who is not a party to a suit has no locus standi to aver facts in the pleadings of a party to the suit, in response to the averments of the adverse party. See Buhari v. Obasanjo (2005) 2 NWLR pt. 910 page 241.
The plaintiff who testified as PW6 said under cross-examination at page 113 of the Record of Appeal thus:-
‘I know Samuel Jideobu. He is the brother of my father’s wife Mercy N. Motoh, when Mercy N. Motoh died, I substituted Samuel Jideobu because he was her brother, I had no other reason for substituting Samuel Jideobu in her place. Samuel Jideobu is now dead. When Samuel Jideobu died, I do not know why the defendants were substituted. I now say that they were substituted lo represent Samuel Jideobu. I sued the present defendants because they are in my father’s compound. They are disturbing me’.
He further said at page 117 of the Record of Appeal thus:-
‘My lawyer applied for the present defendant to be substituted for Samuel Jideobu. I did not swear to an affidavit in support of that application.
In the instant case the persons substituted as defendants were made to testify in a dispute in which they were not proper parties and in which on the face of the statement of claim they were total strangers.
It is trite law that evidence led on a fact not pleaded goes to no issue, such evidence if inadvertently admitted will be expunged. See Amobi v. Amobi (1996) 1 NWLR pt. 469 page 635.
In George & Ors. v. Dominion Flour Mills Ltd. (1963) 1 All NLR 71 at 75, the Supreme Court said:-
‘The fairness of a trial court can be tested by the Maxim audi altertm partem either party must be given an opportunity of being heard, but a party cannot be expected to prepare for the unknown; and aim of pleadings is to give notice of the case to be met, which enable either party to prepare his evidence and arguments upon the issues raised by the pleadings, and save either side from being taken by surprise’.
See also Ahiemeka Emegokwue v. James Okadigbo (1973) 4 SC 113.
Bunge v. Governor Rivers State (2006) 12 NWLR pt.995 page 573 at 598-599.
The plaintiff instead of taking a fresh action against the new defendants whom he claimed were in his father’s compound and disturbing him, took the easy way out to get them to court by substituting them for a dead defendant in a litigation in which they were totally unconnected. The subject matter of the present suit to which they were brought in by way of substitution has nothing to do with either trespass or nuisance to his father’s compound or to his person.
In Okoko v. Dakolo (2006) 14 NWLR pt. 1000 page 401 at 436. The Supreme Court said per Tobi JSC:-
‘The law is not only trite but most elementary that facts not pleaded go to no issue. The rationale behind this principle of law is that by now adversary system of Civil Procedure in the High Court, facts are first erected in the pleadings before the trial of the case.
This is to enable the parties not to spring surprise at the trial and to narrow down the area of disagreement so that parties will not think the sky is the limit in the production of facts in the matter before the court, subject to the fairly liberal rules of amendment of pleadings, parties are bound by their pleadings while a party is free to apply for the amendment of his pleadings once the amendment find themselves in the just state of pleadings, the party is bound by them and he cannot move out of them in search of greener facts completely outside the ones duly pleaded’.
In the instant case from all that have been said, this appeal ought to be allowed and the decision of the lower court set aside.
However, it will be prudent to consider the appeal on its merit in the event my opinion that a wrong procedure was adopted in getting the defendants to defend the matters is also found to be wrong by a more superior court.
The claim of the Plaintiff/Respondent before the lower court was that he was the only son or the 1st son of late Jeremiah Anagor Motoh who died intestate about January 1962.
He claimed that according to Awka native law and custom, it is the Okpala that inherits a dead man’s obu or compound. The Plaintiff/Respondent said that late Jeremiah Anagor Motoh had compounds both in Awka and Onitsha.
He claimed that the late Jeremiah Anagor Motoh married two wives, namely Mercy Nwojini Motoh who was acknowledged as the first wife and Gloria Mgbogafor Motoh, his mother.
The Defendants/Appellants on their part claimed that late Jeremiah Anagor Motoh had only one wife Mercy Nwojini Motoh, whom he wedded at St. Faith’s Cathedral Church, Awka, and she was the original defendant at the lower court. Late Jeremiah Anagor Motoh, the Defendants/Appellants claimed had six daughters and two sons from Mercy Nwojini Motoh.
The Defendants/Appellants maintained that the Respondent is not a child of late Jeremiah Anagor Motoh and that the mother of the Plaintiff/Respondent, Gloria Mgbogafor Motoh was a maid to Mercy Nwojini Motoh.
The central issue for determination is whether the Plaintiff/Respondent had proved that he was a legitimate child of late Jeremiah Anagor Motoh and therefore entitled to inherit his estate.
The plaintiff/Respondent pleaded in paragraphs 2,3, 6 and 7 of his Statement of Claim, the circumstances of his birth and his right to inherit the estate of late Jeremiah Anagor Motoh whom he claimed was his father.
In support of the pleadings, PW1 PW3 PW4 and PW5 all testified to the fact that late Jeremiah Anagor Motoh married two wives, the first was Mercy Nwojinika Motoh while the second wife was Gloria Mgbogafor Motoh and had a male child for him.
The Defendants/Appellants claimed that the Plaintiff s mother was not married to late Jeremiah Anagor Motoh and that the plaintiff was not his son.
The Plaintiff/Respondent in paragraph 1(a) of his reply to statement of defence at page 39 – 40 of the Record of Appeal said:-
The Plaintiff denies paragraphs 11, 15, 16, 17 and 20 of the statement of defence. In answer thereto, the plaintiff states as follows:-
(a) The Plaintiff was well looked after by his father, Jeremiah Anagor Motoh until he died. The plaintiff was a minor when the father died. Plaintiff will at trial rely on his birth/baptismal records.
(Underline mine for emphasis).
Although the Plaintiff/Respondent deposed that at the trial he will rely on his birth/baptismal records to prove that he was the son of late Jeremiah Anagor Motoh, the said birth/baptismal records which would have gone a long way to strengthen his claim were never tendered in evidence.
The court is by the law enjoined to presume the existence of facts which it thinks likely to have happened.
Section 149 (d) of the evidence Act provides:
‘149. The court may presume the existence of any fact which it thinks likely to have happened regard being had to the common cause of material events, human conduct and public and private business, in their relation to the facts of the particular case, and in particular the court may presume.
(a) …………..
(b) …………..
(c) …………..
(d) that evidence which could be and is not produced would if produced, be unfavorable to the person who withholds it.
(e) …………..
The presumption to be drawn from his non production in court of this important and material evidence is that either they did not exist or that if he had produced them, they would be against him.
In the instant case, the Plaintiff/Respondent has not led evidence to establish that late Jeremiah Anagor Motoh was his father, as he had claimed in his pleadings that he would show.
It is not in dispute that late Jeremiah Anagor Motoh was a Christian and died as a good Christian.
PW3 Beatrice Onnegbu said under cross-examination at page 90 of the Record of Appeal thus:-
‘Jeremiah Anagor Motoh in his life time was a Christian and attended St. Faith’s Anglican Church, Awka.
She also said at page 91 thus:-
‘ I attend St. Faith’s Anglican Church, I do not know if the church permit polygamy. Nwojini was in the Guild and mothers union of the church. It is true a person is admitted into the Guild, the church sees the person as a good practicing Christian.
Jeremiah Anagor Motoh was a good practicing Christian. When he died, he was buried by the church.
His wife Nwojini was also buried by the church’.
PW4 Engr. Mmaka Uyanwune said under Cross-examination at page 93 of the Record of Appeal:
‘Jeremiah Anagor Motoh was a Christian. I was not there at his death. I do not know whether he had a Christian burial. Mercy Ojiniket Motoh was a Christian. Both of them attended St. Faith’s Anglican Church Awka’.
DWs Joy Ngozi Dibe Nee Motoh who said that Jeremiah Anagor Motoh and Mercy Nwojini Motoh were her parents said in her evidence in chief:-
‘My parents were Christians,
They wedded in church’.
Although the Plaintiff/Respondent had adduced evidence on the Awka customary law from the locality where late Jeremiah Anagor Motoh hailed from, he has however failed to adduce any evidence to indicate that late Jeremiah Anagor Motoh had regulated his affairs during his life time according to the Awka Native Law and custom.
Since late Jeremiah Anagor Motoh had lived a Christian life, the presumption is that even at death, he would wish that his estate and all affairs connected to him after his death be carried out in accordance with the Christian doctrine rather than according to the customary law of the place of his birth.
The court has a duty to give effect to the wishes of the deceased who is no longer capable of protecting his right or defending his estate which he had worked very hard during his life time to acquire. In the instance case it is clear from the evidence on the printed Record of Appeal reproduced in this judgment that late Jeremiah Anagor Motoh was married to Mercy Nwojini Motoh at St. Faith Anglican Church Cathedral Awka between 1931-32. It is the evidence of PW1 that the marriage was subsisting when he married Gloria Mgbogafor Motoh the mother of the Plaintiff/Respondent under customary law.
In the instant case, although witnesses testified on behalf of the Plaintiff/Respondent that his mother Gloria Mgbogafor Motoh married late Jeremiah Motoh under customary law, the fact of that marriage was not sufficiently proved before the court. Customary law is an issue of fact and has to be proved before the court can act on it. See. Ogolo v. Ogolo (2003) 18 NWLR pt. 852 page 494.
The onus of proof of customary law rests on the person claiming its existence. See Egbuta v. Onunng (2007) 10 NWLR pt- 1042 page 298.
Balogun v. Labiran (1988) 3 NWLR pt. 50 page 66.
Elesie Agbai & Ors. v. Samuel I. Okogbue (1991) 9 – 10 SCNJ 49 at 80-81.
Customary law has to be proved by calling witnesses who have such personal knowledge of the particular custom and it is only when such custom becomes notorious as a result of frequent proof in courts that Judicial Notice of it is taken without further proof. See Dung Jata v. Pam Dung (1993) 3 NWLR pt. 283 page 358.
Lavinde v. Afiko 6 WACA 108 at 110. Adeogun v. Ekunrun (2004) 2 NWLR pt. 826 page 52.
Chiga v. Umaru (1986) 3 NWLR pt. 28 page 460 at 466. Giwa v. Erinmilokun (1961) 1 SCNLR 337.
Folami & Ors. v. Cote & Ors. (1990) 2 NWLR pt. 133 page 445. Osolu v. Osolu (1998) 1 NWLR pt. 535 page 532.
By virtue of section 14 of the Evidence Act, customary law must be established in either two ways, namely:
(a) by the court taking judicial notice of its existence; or
(b) by leading evidence in the particular case. See Egbuta v. Onuors (2007) 10 NWLR pt. 1042 page 298.
Ogun v. Asemah (2002) 4 NWLR pt. 756 page 208.
As a general rule, the success of a plaintiffs case does not depend on the number of witnesses he calls, however in the area of customary law and traditional evidence, it is desirable that a person other than that person asserting the existence of such customary law and tradition should also testify in support of its existence, as it is unsafe to accept the statement of the only person asserting the existence of a custom as conclusive. See Osolu v. Osolu (1998) 1 NWLR pt. 535 page 532. Okene v. Orianwo (1998) 9 NWLR pt. 566 page 408.
Bello v. Governor Kogi State (1997) 9 NWLR pt. 521 page 496. Adeogun v. Ekunrin (2004) 2 NWLR pt. 856 page 52.
Adeosonekan & Anor. v. Military Governor, Ogun State (1995) 26 LRCN Ekpenga v. Ozogula II (1962) 1 SCNLR 423, (1962) 1 ALL NLR (pt. 1) 264. It is therefore imperative to ascertain the status of the marriage between late Jeremiah Anagor Motoh and Gloria Mgbogafor Motoh. The essential ingredients of a valid customary law marriage, such as payment of dowry ceremony, carrying of the bride to the house of the bridegroom etc must have to be proved by calling evidence to establish whether there was a valid marriage under the customary law and in the instant case they were all not established. The only evidence before the court was that of PW 3 who said as a young girl she remembered carrying palm wine in company of late Jeremiah Anagor Motoh to the house of the plaintiff s mother.
There was no evidence of whether bride price was paid and who received the bride price and to whom was the palm wine taken.
In Agbeja v. Agbeja (1985) 3 NWLR pt. 11 page 11 the court held that:-
While the evidence of the Head of the family who received the money may be desirable, what is essential is an eye witness account of the transaction.
For a marriage under native law and custom to be valid, there must be on the one side the ceremony of giving of the dowry and on the other side the ceremony of the giving of the bride for a marriage under native law and custom.
It is settled law that except where a rule of customary law has received judicial recognition, such rule is treated for the purpose of proof a matter of fact.
I am of opinion that in the instant case the marriage between late Jeremiah Anagor Motoh and Gloria Mgbogafor Motoh, the mother of the Respondent said to have been contracted under Awka native law and custom has not been sufficiently proved.
There is also the fact that late Jeremiah Anagor Motoh married Gloria Mgbogafor Motoh while his marriage to his first wife Mercy Nwojini Motoh whom he wedded at St. Faith Anglican Church cathedral Awka between 1931 -32 was still subsisting.
A church marriage is recognized under Section 21 -26 of the Marriage Ordinance Cap 115 Laws of the Federation of Nigeria 1958.
In particular, Section 21 provides as follows:-
’21. Marriage may be celebrated in any licensed place of worship by any recognized minister of the church, denomination or body to which such place of worship belongs, and according to the rites or usages of marriage observed in such church, denomination or body. Provided that the marriage be celebrated with open doors between the hours of eight o’clock in the forenoon and six o’clock in the afternoon, and in the presence of two or more witnesses besides the officiating minister’.
In Patience Nwanyinwa Afonne v. Emmanuel Chidi Afonne (1975) 5 ECSLR 159 at 162 – 163 Oputa J. (as he then was) said of the history church marriage under the marriage Act thus:-
‘The history of marriage and marriage celebrations is very closely bound up with the church, with ecclesiastical or cannon law and with church rites.
Under the cannon law and before the Reformation and the break with Rome, marriages in Christian countries were usually celebrated by a service in a church. This was known as a celebration in facie ecclesiae. The civil laws of many Christian countries retain this aspect of marriage and marriage celebrations. Under Section 21 of our Marriage Act (Cap. 115 of 1958)’.
“Marriage may be celebrated in any licensed place of worship by any recognized minister of the church … To which such a place of worship belongs, and according to the rites and usages of marriage observed be celebrated with open door between the hours of eight o’clock in the forenoon and six o’clock in the afternoon, and in the officiating presence of two or more witnesses besides the minister”.
Under Section 21 – 26 of the Marriage Act, a marriage in facie acclesiae, a marriage celebrated or solemnized in a church service is a marriage under the Act irrespective of what other sacramental significance and value the adherents of the said church may wish to attach to such celebration. The Marriage Act seems to recognize three categories of marriage namely:
(a) Normal Registry Marriages.
(b) Marriages by Special Licence.
(c) Marriages in places of worship licensed for that purpose under section 6 of the Marriage Act.
The marriage in issue here not being a Registry marriage or a Marriage by Special License must of necessity belong to the third category of marriages allowed and recognized by the marriage Act, that is, a marriage celebrated or solemnized in a licensed place of worship, etc. Section 21 Cap, 115.
In the instant case, the marriage between late Jeremiah Anagor Motoh and Mercy Nwojini Motoh not being a Registry marriage or a marriage by special license must of necessity belong to the marriage in places of worship licensed for that purpose under Section 6 of the Marriage Act and is a marriage allowed and recognized by Section 21 of the marriage Ordinance Cap 115, Laws of the Federation of Nigeria 1958.
In Obiekwe v. Obiekwe (1963) 7 ENLR 196 Palmer J said with regard to validity of “Church Marriage” in Nigeria thus:-
‘A good deal has been said about “Church Marriage”
Or “marriage under Roman Catholic Law”. So far as the law of Nigeria is concerned, there is only one form of monogamous marriage, and that is marriage under the Ordinances. Legally a marriage in a church (of any denomination) is either a marriage under the ordinance or it is nothing’.
In the above case, the court was called upon to determine the validity of the marriage celebrated at the Holy Ghost Roman Catholic Church, Enugu on 30th December, 1961, without the parties thereto complying with the provisions of the Marriage Act. The court further held at page 198 thus:-
‘As both parties believe that they were contracting a valid marriage under the ordinance, it could not be said that they “knowingly and willfully acquiesced to a marriage with a Registrar’s Certificate, accordingly the marriage cannot be avoided by Section 33(2) of the Ordinance’.
A celebration in a church to constitute a marriage under the Marriage Ordinance or Marriage Act, must be in a licensed place of worship, by a recognized minister of the church and in accordance with the marriage rites and usages of the said church.
Although the production of the original or certified copy of a Certificate of Marriage is the best recognized method of proving a marriage under the marriage Ordinance, or Marriage Act, however, non production of the said document is not an indication that there was no valid marriage under the marriage ordinance.
In Christopher Anyaegbunam v. Catherine Anyaegbunam (1973) 1 A11 NLR (part 1) page 385 at 386.
The Supreme Court said:-
‘The production of the original or certified copy of a Certificate of Marriage either under Section 32 of the Marriage Act, or under Section 80 of the Matrimonial Cases Decree 1970 is not the only way to prove a marriage: 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 license’.
In the instant case, the original defendant who could have furnished the court with the best evidence about the said church marriage died before she could enter into her defence. I have said earlier in this judgment that the persons substituted for the original defendant were total strangers to the dispute because the Respondent did not plead and led any evidence connecting the new defendants with the dispute. They equally did not plead any fact of their own. The evidence they gave was in support of the original pleadings filed by the original defendant.
I am of the opinion that where there is evidence of marriage having been performed in accordance with the rites of the church and parties to it have lived as husband and wife had cohabited together everything necessary to ensure the validity of the marriage should be presumed in the absence of decisive evidence to the contrary.
This opinion is supported by the decision in the case of Akuwudike v. Akuwudike (1963) 7 ENLR 5 at 6 – 7 where Idigbe J. said:
‘if the particular Roman Catholic Church (as in the instant case) was licensed under the Ordinance Cap. 115 for the performance of marriages, it is my view that marriages performed in such a place – in accordance with any particular usage of that Church must (unless invalid within the provisions of Section 33 (2) (Cap. 115) be presumed valid under the Ordinance it was intention of the parties to go through a form of Church marriage recognized by the ordinance; provided it was celebrated “with open doors between the hours of eight o’clock in the forenoon and six o’clock in the afternoon and in the presence of two or more witnesses besides the officiating minister”. See section 21 of Cap 115.
Therefore, to my mind, if Church Marriages or marriages in accordance with the usages and rights of a church are clearly recognized by the Ordinance (Cap 115) they clearly should be excluded from marriages performed under “customary law” as defined in section 2 of Cap 117’.
The Plaintiff/Respondent did not plead or lead evidence to show that the church marriage was not in compliance with the provisions of the Marriage Act Cap 115.
Section 34 of the marriage Ordinance stipulates that all marriages celebrated under the Act shall be good and valid in law to all intent and purposes.
However, the Ordinance provides that any person who contracted a marriage under the Ordinance shall be incapable of contracting a valid marriage under any native law or custom.
In the instant case, it is clear from the evidence before the court that late Jeremiah Anagor Motoh was in violation of the provisions of Section 48 of the Marriage Ordinance by his purported marriage to Gloria Mgbogafor Motoh.
The said Section 48 provides:-
’48. Whoever, having contracted marriage under this ordinance, or any modification or re-enactment thereof, or under any enactment repealed by this ordinance, during the continuance of first marriage contracts a marriage in accordance with native law or custom, shall be liable to imprisonment for five years’.
In The Queen v. Bartholomew Princewell (1963) NNLR 54 at 55.
The accused contracted a marriage under the marriage ordinance. He was then a Christian, but he later became a Moslem and went through a form of marriage by Moslem law with another woman while the wife of the first marriage was still alive and the first marriage had not been dissolved. He was charged with an offence under Section 378 of the Criminal Code, which provides as follows:-
‘Any person who, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, is guilty of a felony, and is liable to imprisonment for seven years’.
The court said per Reed J.:-
‘There must be two “marriages” to create the offence and the first question is whether both marriages must be monogamous,. The words “husband”, “wife” and “marriage” are nowhere defined . The first marriage must in my view for reason which I shall give, be monogamous so that the words “husband” and “wife” must mean husband and wife in a monogamous marriage.
It would then seem to follow that “marriages and marriage” coming immediately after in the same section, and not having been defined, must refer to a monogamous marriage, Some support is given to this view by section 48 of the marriage ordinance which specifically makes it an offence for a person married under the marriage ordinance to contract a marriage in accordance with Native Law and custom’.
The Plaintiff/Respondent had claimed to be a son of the late Jeremiah Anagor Motoh, however being a biological father is different from being a father legally in the eyes of the law. All the witnesses who testified on behalf of the Plaintiff/Respondent only gave evidence to the fact that the Plaintiff/Respondent’s mother was allegedly married to late Jeremiah Anagor Motoh and gave birth to the Plaintiff/Respondent while late Jeremiah Anagor Motoh was a life.
I am not unmindful of the fact that in Nigeria, children not born in wedlock (marriage ordinance) or who are not issue of a marriage under Native Law and Custom, but are issues born without marriage can also be regarded as legitimate children. If paternity has been acknowledged by the putative father. See Bamgbose v. Daniel 14 WACA 111 at 115., Alake v. Pratt (1955) 15 WACA 20.
Aderinola V. Adeyemi & Ors. v. Alhaji Shetter Bamidele & Anor. (1969) ALL NLR 31 at 37 – 38.
B.A. Lawal & Ors. v. Messrs A. Younan & Sons & Ors. (1961)1 ALL NLR pt. 2 page 245 at 250.
There is no evidence before the court that late Jeremiah Anagor Motoh whom the Respondent claimed to be his father, acknowledged his paternity either on record or by conduct. In fact the Respondent averred on paragraph 1 (a) of the reply to the statement of defence thus:-
‘The plaintiff was well looked after by his father, Jeremiah Anagor Motoh until he died…………’ The Respondent led no evidence to support the averment.
The Plaintiff/Respondent has a duty to lead sufficient evidence to prove his pleadings in Alamieyeseigh v. Igoniweri (No.2) (2007) 7 NWLR pt. 1034 page 524 at 588. This court held that:-
‘It is very settled where a trial is conducted on the basis of pleadings, all or relevant allegations in the pleadings must be proved by evidence and such evidence must be in line with the pleadings.
See N.I.P.C. v. Thompson Organisation (1969) 1 All NLR 138. Put in another way, the plaintiff has to prove his case as pleaded, and prove the truth of the contents of the paragraphs (supra) in order to succeed in the return. If he fails to prove his case on the pleadings to the satisfaction of the court, his case crumbles. Proof is by calling oral evidence. Where as in this case, no evidence has been called to prove the plaintiff’s case, and indeed the entire statement of claim of the plaintiff remain mere allegations’.
The plaintiff/Respondent having not established that in law, he is the son of late Jeremiah Anagor Motoh, he is therefore not entitled to the declarations sought in reliefs (a) and (b) of the Statement of Claim, which the lower court wrongly granted him. The position of the law is that where a man who marries under the statute dies intestate, his estate is only inheritable by the wife legally married under the Marriage Ordinance or Marriage Act. See Esther A. Osho v. Gabriel (supra). Cole v. Akinyele (1960) FSC 84. In re William WACA 156.
On the succession to the property of a person married under the Ordinance who died intestate, the ordinance provided under Section 36 thus:-
36.(1) Where any person who is subject to native law or custom contracts a marriage in accordance with the provisions of this Ordinance, and such person dies intestate, subsequently to the commencement of this Ordinance, leaving a widow or husband, or any issue of such marriage; and also where any person who is the issue of any such marriage as aforesaid dies intestate subsequently to the commencement of this Ordinance.
The personal property of such intestate and also any real property of which the said intestate might have disposed by will, shall be distributed in accordance with the provisions of the law of England relating to the distribution of the personal estates of intestate, any native law or custom to the contrary notwithstanding: Provided that –
(a) Where by the kingdom of England any portion of the estate of such intestate would become a portion of the casual hereditary revenues of the Crown, such portion shall be distributed in accordance with the provisions of native law and custom, and shall not become a portion of the said casual hereditary revenues: and
(b) real property, the succession to which cannot by native law or custom be affected by testamentary disposition, shall descend in accordance with the provisions of such native law or custom, anything herein to the contrary notwithstanding’.
Under the English rule of intestacy, the estate of late Jeremiah Anagor Motoh is inheritable by only his wife married under the marriage Ordinance and her children.
On the right to inherit to the exclusion of the illegitimate children, children born of father’s illicit association during subsistence of marriage or under the Act – The Supreme Court said in Osho v. Phillips (1972) A NLR page 279 thus:-
‘The defendants being the legitimate children of the intestate by his legal wife under the Marriage Act they have a right under section 36 of the Act, to succeed to the deceased’s property to the exclusion of the plaintiff, who were as a result of the deceased’s association with another woman during the subsistence of a legal marriage under the Act and are therefore illegitimate; and the fact that two of the defendants, as administrators, had distributed a portion of the deceased’s personal property amongst the plaintiff as beneficiaries and invited them to the family meeting of the deceased’s children does not stop the defendants from maintaining that the plaintiff are not legitimate children of the deceased’.
It has been said earlier in this judgment that the Respondent is not in law the child of late Jeremiah Anagor Motoh and therefore not his Okpala.
The Respondent is not entitled to inherit the obu or okpuno or the country home of the late Jeremiah Anagor Motoh. By virtue of the provisions of section 36 of the marriage ordinance 1958.
Mercy Nwojini Motoh, the statutory wife of late Jeremiah Anagor Motoh inherited his estate. It is also in evidence that she was granted a letter of Administration over the estate by the court and there was no contest before any court against the grant.
It is in evidence that Mercy Nwojini Motoh made a will as disclosed on page 16 of the Record of Appeal in which she bequeathed her free hold property situate at Awka known as 68 Enugu Road, Awka Town in Awka Local Government Area of Anambra State a subject matter in this dispute to Samuel Chukwunyelu Motoh and Kenneth Ifeanyichukwu Motoh absolutely. The propriety or contents of the Will has not been contested by anybody.
It is trite that courts in the exercise of their interpretative jurisdiction are enjoined to lean where the justice of the case demands. See, A.G. Bendel State v. A.G. Federation (1981) 10 SC 1. I am of the opinion that the proper role of the judge is to do justice between the parties before him. If there is any rule of law which impairs the doing of justice, then it is the province of the judge to do all he legitimately can to avoid that rule so as to do justice in case before him.
The courts in Nigeria exercise the dual role of being courts of law and of equity. A judge in such system has a duty to ameliorate the harsh content of the law, to put it in a colloquial language, a judge has a duty to pour water on the fire of law, where it is equitable to do so.
In the instant case, certain aspects of the finding of the trial court requires the intervention of equity. However, the trial judge seems to have lost sight of this duty in particular when he said in his judgment at page 181 of the Record of Appeal thus:-
‘During the hearing, court was told that the second defendant has no other land in Awka. From the evidence before us and in the circumstance of this case, it looks like the second defendant and his siblings have no other place to go or other family to belong to except Jeremiah Anagor Motoh’s family.
That is the only family they know and have belonged to.
That is unfortunate. The maxim however has always been ‘let justice be done even if the heaven fall’. Justice has to be done to the plaintiff”.
This reasoning of the learned trial judge is outrageous and does not promote justice and fairness. The application of the maxim ‘let justice be done even if heavens will fall, is most inappropriate, misplaced and applied out of con in the circumstances of this case. I will say no more.
It is observed that there is evidence before the lower court which is not in dispute that the late Jeremiah Anagor Motoh was survived by six daughters from his wife married under the marriage ordinance, some of whom were born long before the purported marriage under native law and custom to the Respondent’s mother.
I have said in this judgment that in law, the Respondent is not a child of the late Jeremiah Anagor Motoh because he is a product of an unlawful, null and a void marriage.
I am not unmindful of the decision in Alake v. Pratt (1955) 15 WACA 20 which approves the custom of legitimation by acknowledgment of paternity and placed legitimated children in the same position for inheritance as children conceived in lawful wedlock. However, that statement of the law has been qualified by the decision in the case of Cole v. Akinyede (1960)5 FSC 84, which held that the custom of legitimation by acknowledgment can be allowed by the court only in so far as it affected illegitimate children not born during the continuance of a statutory marriage. In the instant case, the respondent was born when the statutory marriage between Jeremiah Anagor Motoh and Mercy Nwojini Motoh was subsisting.
Even if under customary law, the products of such association are found to be legitimate.
I will have no hesitation in declaring such customary law which discriminates against female children in terms of inheritance to be repugnant to nature of justice, equity and good conscience.
I find support in the case of Mojekwu v. Mojekwu (1997) 7 NWLR 283 pt. 512 page 283, where Tobi, JCA (as he then was) said:-
‘We need not travel all way to Beijing to know that some of our customs including the Nnewi Oli-Ekpe customs relied on by the appellants are not consistent with our civilized world in which we all live totally including the appellants ,….Accordingly, a custom or customary law to discriminate against a particular sex is to say the least an affront on the Almighty God himself. Let nobody to such a thing on my part, I have no difficulty in holding that the Oli-Ekpe custom of Nnewi is repugnant to natural justice, equity and good conscience’.
In the instant case, I have no difficulty in holding that the native law and custom of Umuanaga Awka which discriminates against female children of the same parent and favors the male child who inherits all the estate of their father to the exclusion of his female siblings to be repugnant to natural justice, equity and good conscience.
In conclusion, I hold that the Respondent is not entitled to the reliefs he claimed and which the lower court erroneously granted him. The first issue is resolved in favour of the Appellants.
The remaining issues formulated by the parties for determination are no longer live issues, examining them would amount to indulging in an academic exercise a luxury which courts of law are enjoined not to partake in.
There is merit in this appeal and it therefore succeeds. The decision of the High Court Awka delivered on 18th July, 2005 is hereby set aside including all the consequential orders made therein.
There is no order as to costs, each party to bear his costs of prosecuting this Appeal.
AMINA A. AUGIE, J.C.A.: I have read in draft the lead Judgment just delivered by my learned brother, Aboki, JCA, and I agree with his reasoning and conclusions.
He has dealt extensively with the issues at stake in the appeal, and I have nothing useful to add except to say that the Respondent clearly failed to establish his claim to inheritance, particularly with the weight of the law in favour of the Appellants, which is overwhelmingly against him. Thus, the appeal must succeed, and it is allowed by me. I abide by the consequential orders in the lead Judgment, including no costs.
MOHAMMED L. TSAMIYA, J.C.A.: I have the privilege of reading in advance, a copy of the Judgment delivered by my learned brother, ABOKI, JCA.
I am in entire agreement with the reasons contained therein, and the conclusion that the appeal is meritorious and should be allowed.
I too allow the appeal. The decision of the High Court Anambra State, delivered, on 18/7/2008 is hereby set aside including all the consequential orders made therein.
No order as to costs as each party to bear his costs.
Appearances
S.C. UnachukwuFor Appellant
AND
N.I.N.A. EgwuonwuFor Respondent
