MRS. IFEANYI OBIOZOR v. BABY NNAMUA
(2014)LCN/7125(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 15th day of April, 2014
CA/E/264/2008
RATIO
DUTY OF COURT: WHETHER A COURT MAY IGNORE OR REFUSE TO HEAR AN APLLICATION BEFORE IT
It is trite law that a court cannot ignore or refuse to hear any application before it. A motion or any other process, no matter what the Judge thinks about it, must be considered and decided one way or the other. It will amount to a violation of the right to fair hearing of the party who brought the motion or process, and render suspect the impartiality of the judicial process, to refuse to hear or ignore a pending motion or other process. See Emeka v. Okadigbo (2012) LPELR(SC) IBATOR & ORS v. BARAKURO & ORS (2007) All FWLR (Pt. 371) 1669 at 1695. PER EMMANUEL AKOMAYE AGIM, J.C.A.
JUSTICES
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria
EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria
Between
MRS. IFEANYI OBIOZOR Appellant(s)
AND
BABY NNAMUA (BABY OBIOZOR) Respondent(s)
EMMANUEL AKOMAYE AGIM, J.C.A. (Delivering the Leading Judgment): On the 13-9-2008 the appellant herein as plaintiff commenced suit No. 0/506/2006 in the High Court of Anambra State at Onitsha against the respondent herein as defendant claiming for –
1. A declaration that the plaintiff is the legal wife of the Ozodinaobi Amaechi Obiora Obiozor and as such entitled to his corporeal and incorporeal hereditaments at his demise.
2. A declaration that the plaintiff and her children are entitled to the estate of late Ozodinobi Amaechi Obiora Obiozor under the statute.
3. An order against the defendant to pay over to the plaintiff the rents of N30,000.00 already collected by defendant from the tenants at 37 Isiokwe Road, Onitsha.
4. An injunction restraining the defendant from collecting or continuing to collect rents from tenants at 37, Isiokwe road, Onitsha and also at 242, Ilogbo road, Ilogbo Ajangbadi, Lagos or one vacant plot at 920 road, Plot 770 Festac town, Festac Extension Lagos.
5. An Order of perpetual injunction restraining the defendant, her servants, agents, privies or anybody acting under or through her from entering, remaining, letting, leasing or in any manner interfering with the plaintiff s right enjoyment of her late husband’s corporeal and incorporeal hereditaments.
The writ of summons commencing the suit was accompanied by a statement of claim and the plaintiff s written statement on oath.
The defendant filed a statement of defence and counter-claim for –
a. Declaration that defendant is the only legally married wife of the late Ozodinobi Augustine Obiozor that lived with him until his death.
b. Declaration that Obiorah Obiozor and Augustine Nnamdi Obiozor being the only male issues born to late Ozodinobi Augustine Obiozor are entitle to inherit his landed property in accordance with Onitsha native law and custom that should guide the distribution of his estate.
c. An order of court setting aside the marriage certificate dated 16/1/1998 as null, void and of no effect.
d. Declaration that the marriage purportedly solemnized at the All Saint Cathedral Onitsha on the 14/7/73 between Ozodinobi Obiozor and the plaintiff is not marriage under the Act or recognized by any law in Nigeria.
e. Perpetual injunction restraining the defendants their privies, agents etc from meddling with the estate of late Ozodinobi Augustine Obiozor.
The statement of defence and counter-claim is accompanied by the written statement on oath of the defendant, Mrs. Onyeama Umeh and Bosah Chukwurah. The plaintiff filed a defence to the counter-claim. The plaintiff testified giving evidence in support of her case. The defendant testified and called two other witnesses. Following conclusion of the evidence, the trial court on the 6-5-2008 rendered judgment dismissing the plaintiff’s claim and granting the defendant’s counter-claim in part.
Dissatisfied with this judgment, the plaintiff on the 14-5-2008 commenced this appeal No. CA/E/264/2008 by filing a notice of appeal containing 10 grounds of appeal.
The appellant filed her brief of argument and the respondent filed her own brief. The appellant then filed a reply brief. Both sides adopted their respective briefs of argument.
The appellant in her brief of argument raised the following issues for determination-
1. Whether the appellant’s right to fair hearing was not breached by the refusal or neglect of the court to (a) hear the motion for amendment; (b) issue hearing notice for date of closing address and (c) deliver judgment within three months without parties re-adopting their addresses? (Ground 7, 11 and 12).
2. Whether there was sufficient evidence from which a valid marriage can be presumed between the appellant and the deceased? (Grounds 1, 2, 3).
3. Whether the respondent established her marriage to the deceased under native law and custom. (Grounds 4, 5 and 8).
4. Whether the children of the deceased by the appellant were not wrongly excluded from the deceased’s estate? (Ground 6)
5. Whether on the totality of the evidence the judgment was not erroneous and liable to be set aside? (Grounds 9 and 10).
The respondent in her own brief of argument raised the following issues for determination.
1. Whether there was sufficient evidence to establish a Customary law marriage between the respondent and the deceased (Grounds 4, 5 and 8).
2. Whether the appellant made out sufficient case in her pleadings and oral evidence to warrant a finding that there was any form of lawful marriage between her and the late Ozodinobi Augustine Obiora Obiozor. (Ground 1, 2 and 3)
3. Whether given the circumstances of the case, the plaintiff/appellant was denied fair hearing by the trial court. (Ground 7, 11 and 12)
4. Whether failure to consider the reliefs relating to children of the deceased was wrongful and perverse. (Ground 6)
5. Whether the judgment was against weight of evidence. (Grounds 9 and 10).
I will determine this appeal on the basis of the issues raised for determination in the appellant’s brief of argument
Let me start with issue No. 1. The appellant under this issue contends that her right to fair hearing was violated because of the refusal or neglect of the trial court to hear and determine her pending motion for amendment, issue hearing notice for date of closing address and deliver judgment within 3 months without parties readopting their addresses.
Let me start with the ground that the trial court refused or neglected to hear and determine her pending motion on notice for amendment. Learned Counsel for the appellant after referring to the part of the record of this appeal containing the motion, the statement of claim, paragraph 1 of the statement of claim that contains the particular amendment sought, argued that an application for amendment can be brought at any stage in the proceedings in a case until judgment. He then contended that the trial court did not hear the pending motion or even fix a date for its hearing and submitted that the trial court had the responsibility to consider all pending applications before rendering final judgment in the case and that it is a dereliction of its sacred judicial duty, for the trial court to put aside an application pending before it and proceed to give judgment. He referred to the decisions in SALIM v. IFENKWE (1996) 5 NWLR (Pt. 450) 564, ONYEKWULUJE v. ANIMASHAUN (1996) 3 NWLR (Pt. 431) 637, NDIKA v. CHIEJINA (2003) 1 NWLR (Pt. 802) 451, GREEN v. GREEN (1990) 4 NWLR (Pt. 142) 108, OROH v. BURAIMOH (1991) 2 NWLR (Pt. 134) 641, OKOLO v. UBN LTD (2004) 3 NWLR (Pt. 859) 87 AND OKEKE-OBA v. OKOYE (1994) 8 NWLR (Pt. 364) 605.
The arguments of Learned Counsel for the respondent in reply to the arguments of Learned Counsel for the appellant under issue No 1 of the appellant’s brief of argument is contained in issue No. 3 of the respondent’s brief of argument. With respect to the unheard motion for amendment, Learned Counsel for the respondent argued that the appellant who filed the motion never drew the court’s attention to the existence of such motion nor did she mention it in all the 12 appearances made in the case, that the motion was not served on the respondent and no date was fixed for hearing it. Learned Counsel further contended that the motion which was filed after the trial court had ordered the filing of written final addresses by the parties following conclusion of evidence by both sides was never mentioned by the appellant in the final written address she filed thereafter. He finally submitted that the application must be treated as abandoned and that in any case, even if the motion was heard and granted, the decision will remain the same as the amendment sought would not have made any difference in the decision of the trial court.
It is obvious from the arguments of both counsels that a recap of the sequence of events relating to the pendence of the motion on notice is necessary. The appellant filed her statement of claim on 13-9-2006 when the case mentioned on 30-10-2006, the court noted that the statement of claim was yet to be served on the respondent’s counsel who was present in court. The matter was adjourned to 27-2-2007 for mention. On this date Counsel for the respondent informed the court that they had been served and applied for an adjournment to enable him file the respondent’s statement of defence. The respondent filed her statement of defence and counter-claim on 2-3-2007. The appellant filed her defence to the counter-claim on 12-3-2007. Hearing commenced on 12-7-2007 with the testimony of PW1 (appellant). The defendant closed her evidence on 15-11-2007. The trial court ordered both sides to file written addresses and adjourned the case to 19-12-07 for adoption of the addresses in the presence of both counsel. The respondent filed her written address on 27-11-2007. The appellant filed her written address on 17-12-2007 the adoption of these addresses did not take place till 30-1-2008. On 30-11-2007, the appellant filed a motion on notice praying for-
1. An Order granting leave to the plaintiff/applicant to amend paragraph 1 of the Statement of claim as per the annexure herewith attached and marked “Exhibit A.”
2. An Order deeming the Amended Statement of Claim as properly filed and served, necessary fees having been paid.
3. An Order granting leave to the plaintiff/applicant to file an additional statement on oath as shown in “Exhibit B” and deem same as properly filed and served. The necessary fees having been paid.
4. And for such further or other orders as to this Honourable Court may deem fit to make in the circumstances.
The amended statement of claim and additional statement on oath of Mrs. Ifeanyi Obiozor (appellant) were annexed to the affidavit in support of the said motion on notice as annexures A and B.
After the matter was adjourned on 15-11-2007, the record of this appeal show that it was not mentioned in court again till 30-1-2008. On that day, both parties and appellant’s counsel were absent. The respondent’s Counsel who was present adopted his written address and the case was adjourned to 3-3-2008 for judgment. Judgment was delivered on 6-5-2008.
There is nothing in the record of this appeal showing that the defendant (respondent) was served with the said motion on notice or was aware of its existence. Therefore the contention of the respondent in her brief that she was not served with the motion and that was the reason she did not react to it is valid. There is nothing in the record showing that the attention of the Learned Presiding Judge was drawn to the pendence of the motion on notice or was aware of the pendence of such a motion on notice when he proceeded to render judgment in the case.
I have read through the address of learned counsel for the appellant at the trial court. It is not indicated therein that the appellant had filed a motion for amendment of the statement of claim and that it was pending and ought to be heard and determined before final judgment is pronounced. The appellant made no mention at all of the filing and pendence of any such motion. Therefore, the issue that such a motion was filed and pending and ought to have been heard and determined by the trial court before it could proceed to render judgment in the case was not raised at the trial. There was an opportunity to raise it in the written final address filed by the learned counsel to the appellant and there was an opportunity to have raised it when the matter came up for adoption of written addresses. There was again another opportunity to raise it on the day of the judgment before the court delivered its judgment. Counsel to both sides were present in court on that day. The appellant’s counsel did not raise it. The question that arises at this juncture is, whether it can be raised for the first time in this court as a fresh issue without first having obtained the leave of this court to do so. I do not think so. It is so settled by a long line of decisions including OJIOGU v. OJIOGU (2010) 9 NWLR (Pt. 1198) 1 AT 21 (SC) that it is no longer arguable that an issue not raised at the trial court, cannot be raised in an appeal against the decision of the trial court unless the leave of the appellate court hearing the appeal is first obtained to raise such issue in the appeal as a fresh issue.
Since this issue was raised in ground 7 of this appeal and argued without the leave of this court having been first obtained to do so, ground 7 of this appeal, the part of issue No, 1 in the appellants brief of argument and the argument thereunder relating to the failure to hear and determine the pending motion on notice for amendment of the statement of claim and to file the appellants additional written statement on oath are incompetent and are hereby struck out. See OSENI v. BAJULU & ANOR (2009) 18 NWLR (Pt. 1172) 164 (SC).
However, to ensure a complete determination of the issue, I will also consider the merit of the issue, my above decision notwithstanding. It is obvious from the record of appeal that in fact the attention of the trial judge was not drawn to the filing and pendence of the motion on notice and that he was not aware of the filing and pendence of such a motion. It is also obvious that the complain of the appellant concerning this matter as contained in ground 1 of this appeal and issue No. 1 in the appellants’ brief is founded on the fact the motion on notice was filed in the registry of the court on 30-11-2007 before the adoption of written briefs and judgment. The complain proceeds from the assumption that notice of the processes filed in the registry of the trial court must be imputed to the Presiding Judge and therefore the Judge ought to be aware of the pendence of such a motion, or deemed to be aware of it, whether his attention has been drawn to it or not and that therefore any judgment he renders without first hearing and determining any process filed in the registry, even if unknown to him in fact is in violation of the fair hearing right of the party who filed the process.
Since the court’s attention was not drawn to the pendence or existence of the motion for extension of time, will it be right to accuse the court of ignoring or refusing to hear an application it was not aware of. I do not think so. Can the trial court’s awareness of the existence of such a process be deemed or assumed from the fact of the filing of the process? I do not think so. To hold otherwise will disregard the current realities in the management of processes in our court registries. It is a notorious fact that it takes some length of time for processes filed in the court registry to get to the case file of the court. So that in many situations, the court during proceedings in open court only becomes aware that a particular process had been previously filed in its registry when its attention is drawn to such filing by counsel who filed it. This occurs so frequently that it is no longer realistic and pragmatic to assume that once a process is filed in the court registry, it must be in the courts case file and that the Judge must be aware of its existence. This is the situation for now until our court registries are organized and equipped to ensure that processes filed are promptly put in the court’s file and brought to the notice of the Judge before the proceedings in that case begins on a particular day. It is not realistic to expect that the Judge should contact the registry to find out if any processes have been filed in respect of the case or cases before him or her for a particular day. In the light of this reality, it is the duty of the party that filed a process to draw the court’s attention to the fact that such process has been filed.
The defendants showed no interest in the motion they filed. They appeared to have abandoned that motion. Their failure to mention it and even move it in their written address or try to draw the attention of the court to it before judgment was delivered on the day of judgment is consistent with this conclusion.
It is trite law that a court cannot ignore or refuse to hear any application before it. A motion or any other process, no matter what the Judge thinks about it, must be considered and decided one way or the other. It will amount to a violation of the right to fair hearing of the party who brought the motion or process, and render suspect the impartiality of the judicial process, to refuse to hear or ignore a pending motion or other process. See Emeka v. Okadigbo (2012) LPELR(SC) IBATOR & ORS v. BARAKURO & ORS (2007) All FWLR (Pt. 371) 1669 at 1695 held 2.However, as held by this court in IKECHUKWU v. NWOYE & ORS (unreported judgment in CA/E/300/2012) following the decision of the Supreme Court in Emeka v. Okadigbo (supra) per Rhodes-Vivour, JSC it is not in all cases that failure of the trial court to hear a pending motion before delivery of judgment is fatal to the proceedings. It is the duty of an Appeal court to examine the motion that was pending and ensure that failure of the trial Judge to take it has not led to a denial of fair hearing or/and miscarriage of justice.
Where the court is not aware of the filing and therefore the existence of a motion on notice, it cannot be said to have refused to hear such motion. As the Supreme Court held in IBATOR & ORS v. BARAKURO & ORS (supra) held 3 that a court cannot be wrong for not hearing or determining a matter, the notice or existence of which was not drawn to its notice. In that case, His Lordship, Mohammed, JSC delivering the lead judgment of the court held that:
“From this record, it is quite clear that when the attention of the court below was drawn to the pending motion filed by the 1st – 4th respondents and the application by their counsel to withdraw the motion, as the learned counsel to the appellants had no objection to the withdrawal of the motion, it was accordingly struck out by the court below. At that point, if the appellants’ counsel had wanted to proceed with the appellants’ pending motion to call additional evidence before hearing their appeal, their learned counsel could have informed the court of his desire to move the motion first for determination before the hearing of the appeal. Therefore, by refusing to say anything to the court below on the appellants’ motion before arguing their appeal, their learned counsel a fortiori, the appellants are deemed to have abandoned their motion. The complaint of the appellants of the alleged denial of fair hearing does not arise at all from the proceedings of the court below.”
According to Ogbuagu JSC in the same case “The records on the hearing date or even before the judgment or even on the date of the judgment have not shown where the appellants’ said motion/application was ever mentioned to the court below/Justices, how much more to talk of their failing to hear the said application. If the learned counsel for the appellants, in his wisdom, had decided as the ‘master’ of their appeal before the court below, to abandon their said motion and not even to mention it, how does the court below or the Justices come in? I or one may ask. It should have been a different matter if the learned counsel for the appellants had mentioned their said motion and the court below refused to hear the same and insisted on going on or ahead with the hearing of the appeal. Then, there and then, the complaint of the learned counsel for the appellants and not even the appellants personally should have been understandable and considered. To now blame the blameless or ‘shift the buck’, so to say of the failure or refusal of the learned counsel, or his neglect to mention their motion or move it to the learned Justices of the court below and blatantly accuse them of refusal to hear and determine the said application, to me, is unfair and not justified to say the least and it is unacceptable to me, with the greatest respect to the learned counsel to the appellants. Instead of graciously accepting or conceding his fault or negligence and blame this on perhaps inadvertence, he now shifts the non-hearing of the motion on the learned Justices of that court.”
In virtually all the cases in which this court or the Supreme Court held that a pending motion or process was ignored or that a court refused to consider such motion or process, this court or the Supreme court did so on the basis that the existence or pendence of such motion or process was brought to the attention or notice of the court, and it did not consider and determine the motion or process one way or the other, disregarded it and went ahead to take a decision that rendered it nugatory. See for example AKPAN v. BOB (2010) 17 NWLR (Pt. 1223) 421 (SC) DINGYADI & ANOR v. INEC & ORS (2010) LPELR-952 AND IFEANYI CHUKWU OKONKWO v. CBN (2010) LPELR-428 (CA).
Let me also add that it is the duty of a party who filed a motion to indicate his intention to move the motion or move it. If he fails to move it or try to move it and participates in the conduct of further proceedings, he cannot subsequently validly contend that the court refused to hear his application. I do not think it will be correct to expect the court to rummage through its file, bring out such application, remind the applicant of his pending application, ask applicant what he wants to do with it then deal with it one way or the other. This court in FCE OKENE vs. OGBONNA & ORS (2006) LPELR-5623 relied on the decision of the Supreme Court in OFORKERE v. MADUIKE (2003) 5 NWLR (Pt. 812) 116 that “a court process which is not moved in court is as good as not filed, unless the process is not opposed by the respondent in which case the court will deem the motion as moved. Per Muhammad, JCA pp. 11-12.
In IKECHUKWU v. NWOYE (supra), this court held concerning the failure of a party to move a pending motion that “Where as in this case, the case is fixed on a date for adoption of written addresses, a motion on notice is filed on the eve of that date, served on one of the parties 30 minutes before commencement of sitting of Court , with no indication that the remaining party is served, the applicant does not indicate he wants to move the motion or ask for adjournment to enable him do so, the Court cannot suo moto hear the motion on notice or grant an adjournment not asked for. It is for the applicant to take steps to initiate the hearing of his or her motion on notice. The Court cannot do that for the applicant. It is only when the applicant wants to move his or her motion or applies for adjournment to move it and the Court refuses that it can be said that the Court has refused to hear the motion. To merely inform the Court of the pendence of the motion and say or do nothing further does not obligate the Court to suo moto hear the motion.
Learned Counsel for the respondent has argued that the application for amendment could not lie after the close of the case by virtue of Order 24 Rule 1 2006 High Court Civil Procedure Rules of Anambra State. The appellant’s Reply did not answer this argument. I agree with the submission of Learned Counsel for the respondent that the application for the amendment of the statement of claim was caught by limitation of time as rightly submitted by Learned Counsel to the respondent, so that even if it had been brought to the notice of the trial court and tried, it would not have been granted as it was already barred by the rules from being made after the close of the case of the parties. Order 24 of the 2006 High Court Civil Procedure Rules of Anambra State which regulates the amendment of pleadings and other process in civil proceedings states in Rule 1 that “A party may amend his originating process and pleadings at any time before the close of pre-trial conference and not more then twice during the trial but before the close of the case. So by virtue of Order 24 Rule 1, an application for amendment of pleadings cannot be made after the parties have closed their case, and if made as in this case, the court will lack the jurisdiction to hear and determine it. So no miscarriage of Justice was occasioned by not hearing it. Even if it had been heard the decision of the Court would obviously have remained the same.”
I will now deal with the second ground of issue No.1 that the trial Court refused or neglected to issue hearing notice for the date of closing address. It is glaring from the record of Appeal that on the 15-11-2007, in the presence of both Counsels to the parties, the trial Court adjourned the case to the 19-12-2007 for adoption of written addresses. The records show that the next date on which proceedings were conducted in the case was 30-1-2008. There is nothing in the record of this appeal showing that the trial Court listed and dealt with this case on 19-12-2007. The record of Appeal show that on 30-1-2008 when the respondent’s Counsel adopted his address, the plaintiff and her Counsel were absent. There is nothing in the record of this appeal showing that the trial Court satisfied itself that the appellant or her Counsel had been served with notice of that days hearing before going on with the proceedings that day. After the Learned Counsel for the defence adopted his written address, the trial Court adjourned the case without making any pronouncement on the Status of the written address of the plaintiff.
The Learned Counsel for the appellant has argued that the trial Court acted in grave error by not checking to satisfy itself that the appellant or her Counsel had been served notice for that day’s hearing before going on with the proceedings that day and that the Trial Court did not make any order that hearing notice be served on the appellant’s Counsel to notify him of the date fixed for the judgment to be delivered. Learned Counsel further submitted that if notice of the new date for the adoption of addresses had been served, the appellant would have had the opportunity to adopt his address, exercise the plaintiff s right of oral argument of not more than 20 twenty minutes vested in him by Order 31 Rule 4 (1) of the 2006 Anambra State High Court Civil Procedure Rules and perhaps draw the attention of the trial Court to the Motion on Notice for amendment of the Statement of claim. Learned Counsel also submitted that since he was not in Court to adopt the address, it could not have been deemed argued, as it is the right of a party who files an address to be heard in Oral argument for not more than twenty minutes. According to Learned Counsel, the respondent seemed to have had an upper hand or a better chance of presenting her case to the Court and that a word or two in Oral argument would have mattered so much. Another submission of Learned Counsel for the appellant is that contrary to the Statement of the trial Court that “at the end of the respective cases for the parties, both Counsel addressed the Court”, the learned Counsel for the appellant did not address the court.
Learned Counsel for the respondent argued in reply that:- “It is preposterous that a plaintiff who instituted a case in court should await hearing notice to attend to her case. It is more worrisome that the same appellant filed her written address as ordered by the court but failed to come to court to adopt same. A party who knowingly fails to appear in court after having knowledge of the case should have himself or herself to blame. The plaintiff did not deserve any hearing notice, as her counsel was present when written addresses were ordered by the court to be filed on the l5/11/07 from when the case was adjourned to 19/12/07. It is instructive to note that the counsel who conducted the case for the plaintiff at the hearing up to closure of cases was F. U. Ogudebe, Esq., but curiously it was O. R. Ulasi Esq. who wrote the written address and filed same for the plaintiff. If therefore the plaintiff chose to change her counsel so late in the case, she and she alone should bear the consequences of not intimating the new counsel of the up to date development in the suit. The plaintiff and her counsel were present on the judgment day without hearing notice. How did they come to know the date of judgment without waiting for hearing notice to be served and them? The plaintiff has not shown what she lost as a result of her own failure to appear to court to adopt her addresses.”
If a Court, in the presence of Counsel to both sides, adjourns a case to a certain date for adoption of addresses, but for some reason it is unable to sit on that date, it is important and mandatory that notices indicating the new date for the hearing of the case be issued and served the parties or their Counsel (preferably their Counsel) since legal arguments in the addresses are to be adopted or made. This ensures not only that they become aware of the new date but that there is a record of the issuance of such notice and the fact that it was served on Counsel. Without such record, it cannot be validly contended that the party who is not in Court was aware that the matter is coming up that day. The argument of learned Counsel for the respondent that the appellant did not deserve any hearing notice as her Counsel was present on the 15-11-2007 when the matter was adjourned to 19-12-2007 for adoption of address, would have been valid if the adoption of addresses took place on the said 19-12-2007. Where proceedings in a case are adjourned by a Court, in the presence of a party or his Counsel a certain date, the absence of the party or his Counsel on that stated date cannot prevent the proceedings from going on. Such a party cannot validly complain that he or his Counsel was not served a notice of that day’s hearing. Such a complaint is not available to such a party as he has no right to further notice of hearing on that date.
In our present case the proceedings in the case did not take place on the 19-12-2007, the date stated for adoption of addresses in the presence of both Counsel. The notice that the adoption of addresses will take place on 19-12-2007 expired after 19-12-2007. So that the parties were entitled to be served with notices indicating the next date of hearing. In any case, even if the proceedings did take place on the stated date, if a party and his Counsel are absent on that date, the court in adjourning the case to another date for hearing has a duty to order fresh hearing notice to be issued and served on the absent party or his Counsel indicating the next date of hearing of the case. So the argument of the Learned Counsel for the respondent that it is preposterous that a plaintiff who instituted case in Court should await hearing notice to attend her case is not valid. I agree that it is desirable that parties should be proactive in following up the prosecution of their cases in Court. This will help the diligent prosecution of their cases. But the Court must do what the Law requires it to do. The failure of a party to go to the registry of the Court to find out or get the new date for the hearing of his case does not relieve the Court of its responsibility to issue and serve him or his counsel hearing notice or justify the failure of the Court to do so. The submission of the Learned Counsel for the respondent that the failure of the respondent’s Counsel to attend Court to adopt written address on 19-12-2007 cannot be blamed on the Court who gave ample opportunity to the parties to do so, cannot be taken seriously when the record of appeal shows clearly that the court did not sit on that day and no fresh hearing notices were issued and served on the parties.
I fail to see how the plaintiff s non-compliance with Order 48 Rule 5 of the 2006 Anambra State High Court (Civil Procedure) Rule in changing her Counsel can justify the non-issuance and service of notice of the new date for the adoption of addresses (on 30-1-2008) and the failure of the trial court to find out and satisfy itself that the plaintiff was served the hearing notice before proceeding with the adoption of addresses. At least there should have been a record of the notice of hearing and its service on the plaintiff or any of her Counsel in the record of this appeal. There is nothing in the record of this appeal indicating that the new counsel for the plaintiff took any date without informing the court or other Counsel. It is trite law that the arguments of counsel in an appeal must be based on the facts contained in the record of appeal. Allegations of events not contained in the record and any submissions based on such allegations are not valid for consideration.
I will therefore discountenance this submission as invalid. What is clear from the record of this appeal is that after 15-12-2007, the plaintiff or her counsel did not receive notice of the new date for adoption of addresses and her Counsel was not in court on 30-1-2008 to adopt her own written address. It is noteworthy that the Learned Counsel for the respondent who was present merely adopted his written address without proffering any oral argument in support. Curiously, all the parties and Counsel on both sides were present in court when judgment was delivered by the trial court.
It is glaring from the terms of that judgment that the trial court adequately considered the arguments of the Learned Counsel for the appellant in his written address and the arguments of Learned Counsel for the respondent in his written address in deciding the issues in the case. This signifies that the trial court had treated the written address of the appellant as adopted and considered it in arriving at its judgment. The trial court considered only the arguments contained in the respective written addresses of both sides in arriving at its decision.
The question that arises at this juncture is whether the appellant was deprived of her right to fair hearing since she was not availed an opportunity to be in court to adopt her written address and orally address the court.
Let me state straightaway that since the Court had adequately considered her written address in its judgment and thereby took it as adopted, the complain of the appellant that he was deprived her right to adopt her written address and make a short oral argument in support of the written address lack substance. Her written address was not disregarded by the trial court. She therefore suffered no prejudice as a result of her absence in court on the 30-1-2007. The parties were to attend court on that day to adopt their addresses, so as to enable the court consider and be guided by same to in deciding the case. This purpose was achieved in spite of her absence.
The argument of the appellant that on 30-1-2008, “the respondent seemed to have had an upper hand or a better chance of presenting her case to the court and that a word or two in oral argument would have mattered” is rendered irrelevant by the fact that on 30-1-2008, when Learned counsel adopted his written address, he made no oral arguments, and the judgment showed adequate consideration of the arguments in the appellant’s written address. It is obvious that the trial court equally considered the arguments in the two written addresses on every issue determined in the judgment.
Let me now shift attention to the last ground issue No. 1. The appellant has complained that following the adoption of addresses on 30-1-2008, the trial court was mandatorily bound to deliver its judgment within 3 months therefrom, but that the judgment was rather delivered on 6-5-2008, after the expiration of the 3 months period.
Learned counsel to the appellant did not refer to the statute that requires that the trial court must deliver its judgment within 3 months after the completion of final addresses. Be that as it may, consistent with the general legal doctrine that a court is bound to apply the relevant provisions of a law to determine an issue raised in a case before it even if not referred to by the parties, I will apply the provisions of S. 294(1) of the 1999 constitution of Nigeria which sets the mandatory time limit of 90 days from the date of conclusion of evidence and final addresses for final judgment to be delivered in a case. It states that- “Every court established under this Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof.”
It is beyond argument that the trial court delivered the judgment resulting in this appeal on or about the 96th day from the 30-1-2008, when addresses was adopted, clearly after the expiration of the 90 days period prescribed by S. 294(1) of the 1999, within which such judgment must be delivered.
However, Learned Counsel did not address this court on the effect of this non-compliance with S. 294(1) of the 1999 constitution on this judgment. He merely argued that “the point may sound technical, but my lords, is this not a pointer to the simplistic attitude of the Learned trial Judge to this constitutional matter? As noted by Mohammed, JSC in ONYEKWULUJE v. ANIMASHAUN (supra) at page 644 para H thus- “the issue may be technical in nature but where technicality touches a fundamental objective to fair hearing it cannot be ignored.” This argument does not by any stretch of understanding state the effect of non compliance with S. 294(1) of the Constitution on the judgment. I understand the argument to be saying that the non-compliance is a constitutional matter that touches on fair hearing and so should not be treated as a purely technical matter. Be that as it is, the effect of non-compliance with S. 294(1) of the 1999 constitution is expressly provided for by S. 294(5) of the same constitution as follows- “The decision of a court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provisions of subsection (1) of this section unless the court exercising jurisdiction by way of appeal from or review of that decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof.”
The wordings of this provision are clear and unambiguous. It is obvious that the provision is intended to save judgments delivered outside the stipulated 90 days period and render them valid ab initio, notwithstanding S. 294(1) until it is set aside or declared a nullity by this court or any court reviewing that decision after being satisfied that the party complaining has suffered some miscarriage of justice by reason of the delivery of the judgment after the stipulated 90 days period. It is also glaring from this provision that the judgment shall not be set aside or declared a nullity merely because it was rendered after the prescribed 90 days period. The court reviewing the decision must be satisfied that the delivery of the judgment out of time has caused the complaining party some injustice. ONYEWUKE v. SULE (2011) LPELR-9084 (CA).
It is obvious from the tenor of the said S. 294(5) of the constitution that it is the duty of the party complaining that a judgment was delivered after the 90 days period to show what miscarriage of justice or prejudice he has suffered as result of the delivery of the judgment outside the 90 days time limit. This court has to be satisfied by reference to the record of the proceedings of the trial court, that the delay in the delivery of the judgment has caused some miscarriage of justice to the party complaining. Such a miscarriage of justice cannot be assumed to have arisen automatically by virtue of the delay. The adverse impact of the delay on the party complaining must be shown to exist on the record of the proceedings of the trial court. See OKON v. ITA (2010) LPELR-2010 (CA) AND ONYEWUKE v. SULE (2011) LPELR-9084(CA).
I have carefully read the record of this appeal and I am satisfied that the appellant has not suffered any miscarriage of justice by reason of the delivery of the judgment after 90 days from 30-1-2008.
In the light of the foregoing, I resolve issue No. 1 against the appellant.
Let me now consider issue No. 3 which asks whether there was sufficient evidence from which a valid marriage can be presumed between the appellant and the deceased. I have chosen to treat this issue before issue No. 2 because I think that considering issue No. 2 before issue No. 3 will result in prejudging issue No. 3. The portion of the judgment complained against by the appellant under this issue states as follows- “Fortunately or unfortunately, however, the defendant seriously challenged the validity of the marriage. She is of the view that exhibit P1 is not a viable evidence of marriage. According to her, through her counsel, exhibit P1 fails short of the expectations of the Marriage Act. The learned counsel for the plaintiff has no problem with that. He conceded that exhibit P1 is not such a marriage certificate which is envisaged by the Marriage Act. He however expressed the view that where there is evidence of a ceremony of marriage having been gone through followed by the cohabitation of the parties, a valid marriage is presumed. To that extent only, I totally agree with the Learned Counsel for the plaintiff. It was in the often cited case of CHRISTOPHER ANYAEGBUNAM v. CATHERINE ANYAEGBUNAM (1973) ANLR 320 AT 330 that the Supreme Court had the following to say, with respect thereof:-
Again, it will be inappropriate to suggest that the only way to prove a birth death or marriage is by the production of the relevant certificate or a certified true copy thereof. Thus where there is evidence of a ceremony of marriage having been gone through followed by the cohabitation of the parties, everything necessary for the validity of the marriage will be presumed.
In the light of the above stated dictum of the law lord Fatayi Williams, JSC, the fundamental question which inexorably flows is whether there is evidence of ceremony of marriage adduced by the plaintiff on the basis of which the court can presume the existence of marriage.
I make bold to say, right away, that there is none. It was as a result of some circumstances which were similar to the one on hand that the Supreme Court in ANYAEGBUNAM v. ANYAEGBUNAM supra at 331 stated as follows:
One would have thought that the petitioner would have produced the marriage certificate or a certified copy thereof or called the priest who performed the ceremony, or if the priest was not available, explain why and then call any of the witnesses or any of those who were present at the ceremony. Instead, she offered no evidence and only put in the document (exhibit 6) to which we have referred earlier. To our mind, this document, described by the person who wrote it as a certificate of marriage, is not in the form prescribed in Form E in the 1st schedule to the Marriage Act. At best this document contains the hearsay evidence of what somebody called Father H. Roche could come to court to say on oath and be cross examined. No reason was given why the priest was not called.
In my humble opinion, deducible from the above stated dictum of the eminent jurist is that where a certificate of marriage which was issued by a church fails below the standard of the law, it does not automatically, without further evidence, translate to proof of marriage under native law and custom. It is for the above reasons that I am of the humble opinion that exhibit P1 is of no assistance to the plaintiff.
Having said so, it thus turns for me to consider the validity or otherwise of exhibit P2. It is a marriage certificate which was issued in consonance with the Marriage Act. The certificate, no doubt, conforms to the requirements of the law. The learned defence counsel has no problem with that. There is however, the question of the certificate having been issued on the 16th day of January 1998, about eight years after the aforesaid customary law marriage of the defendant and the deceased. It was Section 33(1) of the Marriage Act which renders invalid any statutory marriage which was contracted whilst a customary law marriage, with a third party, is still subsisting.
In proffering an answer to the above stated legal puzzle, the learned counsel for the plaintiff expressed the view that, on the face of the record, the defendant has failed to prove, with such certainty as is required by the law, the existence of a customary law marriage, so as to invalidate a marriage which was celebrated under the Act.
I agree with the learned counsel for the plaintiff that the case of ETHEL ABISOGUN v. AKINTUNDE ABISOGUN & ORS (1963) ANLR 235 is germane to the issues under consideration. In that case, the court held that the evidence which was adduced may be enough to prove marriage in accordance with native law and custom but fails short of the standard of proof required to invalidate a marriage under the marriage ordinance. The reason why the court in that case formed that view is quire obvious to all and sundry. At page 239 of the report, the court had the following to say:-
Ayodele Pomphilo gave evidence that she went through that form of marriage with the deceased. She stated that many of her relatives were present at the ceremony when the dowry was brought to her parents. She referred to some close relations of the deceased who brought the dowry. The three persons she could remember were dead. There were many others, according to her, but she could not remember any of those who were still alive. Then she mentioned a friend of the deceased who was present at the ceremony and who had come with the deceased to see her parents. There was no evidence that this friend, Sebastine Pedro, was not alive. In fact, counsel admitted in this court that he is alive and active, yet he was not called to give evidence.
It seems to me, therefore, that the Abisogun case is distinguishable from the present suit. In that case, the court held that the standard of proof was below expectations because there were some vital witnesses who were available for the petitioner but whom she failed to call. The court then invoked the provisions of Section 149(d) of the Evidence Act. The same cannot, however, be said of the present case. DW2 and DW3 both played vital roles during the marriage ceremonies. They were both rigorously cross examined but, in my humble opinion, remained unshaken in their credibility. The standard of proof, in the present case, is high enough to meet the requirements of the law.”
Learned counsel for the appellant has argued that –
1. Exhibit DIA-DIF relied on by the respondent to prove the customary law marriage between the deceased and herself was wrongly admitted at the trial court in that being photographs, they are secondary evidence that can be admitted only after proper foundation explaining the where about of the negatives of the said photograph (the primary evidence.) For this submission he relied on S. 97 of the Evidence Act and urged that this court should expunge the said evidence.
2. The trial court wrongly applied the decision in ABISOGUN v. ABISOGUN & ORS (1963) 2 SCNLR 82 and that the evidence of DW2 and DW3 do not establish with a high degree of certainly the customary marriage between the deceased and the respondent
3. In view of the respondent’s counter-claim, she had a heavy burden to prove customary marriage and that photographs and the testimonies of DW2 and DW3 with the evidence of the deceased or any member of his family leaves a lot to be desired.
4. There is no evidence of bride price customary rites of passage, and how the customary marriage was conducted.
She did not plead the bride price in her pleading and so the evidence of DW3 is not supported by the pleadings and go to no issue. Evidence of payment of bride price is a necessary ingredient of customary marriage. He referred to NSIRIUN v. NSIRIUN (2005) SMC 267 AT 301 in support of this submission.
Learned Counsel for the respondent argued in reply that-
1. There was sufficient evidence to establish a customary marriage between the respondent and the deceased.
2. The respondent unlike the appellant took steps to prove that there was a valid marriage under customary law between herself and the deceased. Learned counsel then enumerated the evidence she relied on to prove the existence of the customary law marriage to include her testimony that the deceased came to her family to pay the dowry, exhibits DIA-DIF showing the ceremony of the marriage in accordance with Onitsha native law and custom, exhibits D2 to D7, the birth and baptism certificates of the children of the marriage bearing the names of the deceased and the respondent as parents of the children, testimony of DW2, chief brides maid during the respondent customary marriage, and testimony of DW3 head of respondent’s family who presided over the marriage.
3. DW2 is shown in the photographs standing behind the respondent as chief brides made DW3 is shown in the photograph administering libation.
4. Contrary to the assertion of the appellant, the negatives of the photographs are part of the exhibits.
5. Her testimony and those of DW2 and DW3 could not be shaken in cross-examination.
6. The finding of fact by the trial court that the respondent and deceased were married under customary law cannot be disturbed by this court unless shown to be perverse
7. DW2 mistakenly stated that at the time of the said customary marriage, she was 15, when she is 20 years as reckoned from her year of birth 1970 and that the fact that she mistakenly stated that she was fifteen when it was clear that she was twenty can never be a ground to disbelieve her other credible testimony. He relied on TUNDE ADAVA v. THE STATE (2002) 48 WRN 117 AT 137 for this submission.
8. The customary marriage between the respondent and the deceased was proved on a high degree of probability as required in Abisogun v. Abisogun (supra).
Learned Counsel for the appellant in the appellant’s reply brief argued that-
1. Exhibits D2 to D7 do not prove customary marriage and only tend to prove that the deceased was the father of the respondent’s three children.
2. The testimony of DW3 that he shared the bride price is not contained in the statement of defence and counter-claim.
3. Both sides had equal burden to prove their respective claims and counter-claims
4. Learned counsel withdrew his arguments in respect of the photographs, exhibits DIA to DIF.
I will now consider the above arguments of counsel to both sides.
The substance of the arguments of Learned counsel for the appellant is that the respondents pleadings and evidence do not justify the finding of fact by the trial court that respondent and the deceased were married under native law and custom. I agree with the submission of Learned counsel for the appellant that the respondent had the burden to prove that the deceased married her under Onitsha native law and custom because she is the one who asserted the existence of such a marriage, she desired that judgment be given on her counter-claim on the basis of the existence of the said customary law marriage and her counter-claim would fail if she fails to prove such marriage. S. 131(1) of the 2011 Evidence Act provides that whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exist. Ss. 132 and 133 of the same Act provide that in civil proceedings the burden of proof lies on that party who would fail if no evidence at all were given on either side. By virtue of S. 134 of the same Act the burden is discharged on a balance of probabilities.
Let me now look at the statement of defence and the evidence elicited to find out if this burden was discharged or not.
The respondent stated in paragraph 19 of the statement of defence at page 20 of the record of this appeal that “it was Ikechukwu Obiazor’s late father Francis Obiozor, who officiated as the diokpa in 1990 when my late husband married me under Onitsha native law and custom in 1990 at 37, Isiokwe Street Onitsha and I have in my possession photographs to that effect.”
I noticed that the numbering of the paragraphs of the statement of defence are repeated and mixed up. In the second paragraph 20 of the statement of defence at page 22 of the record of this appeal it is stated that – “It was Ikechukwu Obiozor’s father Francis Obiozor who as diokpa officiated in 1990 along with the defendant’s diokpa, one Bosah Chukwurah when Ozodinobi married the defendant. Photographs of the traditional marriage between them are hereby pleaded.”
Paragraph 5 of the statement of defence at page 14 of the record of this appeal states that “the late Ozodinobi Obiozor retired in 1988 two years before his marriage with the defendant in 1990 and have been living uninterruptedly with her till his death on 5th August 2006 at the Leads Hospital, Modebe Avenue, Onitsha.
Paragraph 37 at pages 25 and 26 of the record of this appeal state that “defendant states that she and the late Ozodinobi Obiozor had lived together as husband and wife for 16 good years before his death and all the period, she never saw the plaintiff at their matrimonial home until she shamelessly appeared after the death of late Ozodinobi A. Obiozor and started fighting for the outright sales of his possession just to spite the defendant and her 3 children, one female and 2 male children.”
Paragraph 12 of the statement of defence at page 20-21 of the record of this appeal state that- “In final answer to paragraphs 8, 9 and 10 defendant states that at no time since she and the late Ozodinobi A. Obiozor commenced cohabiting in 1990 till his death on 5th August 2006 had she ever seen the plaintiff either at their home in Lagos or at No. 37 Isiokwe Road Onitsha, defendant saw the plaintiff for the first time during the preparations for the burial of her husband in the company of one Ikechukwu Obiozor, a nephew to her late husband who introduced the plaintiff as a former wife of the late Ozodinobi A. Obiozor and pleaded with her to allow the plaintiff to participate in the burial, a plea which the defendant turned down on the ground that she did not know her as Ozodinobi’s wife nor did Ozodinobi Obiozor ever told her he married plaintiff.”
Paragraphs 22 and 25 at page 23 of the record of this appeal state inter alia that “the defendant was on customary confinement on the eve of her late husband’s burial in accordance with Onitsha native law and custom.” The appellant did not file any reply to the statement of defence and did not respond to the above paragraphs of the statement of defence reproduced herein even though they contain facts that were not pleaded in the statement of claim. There was a glaring need for the appellant to have filed a reply to answer the allegations in the statement of defence that the deceased in his life time married the respondent under Onitsha native law and custom. This fact was never raised in the statement of claim. There is no paragraph of the statement of claim in which the appellant distinctly, clearly and directly stated that the respondent was not married by the deceased. The appellant in paragraph 4 of the statement of claim stated that “At all times material to this proceedings the plaintiff s husband never mentioned the defendant even as a paramour or a person that he had any degree of relationship with throughout his life time.”
In paragraph 17 of the same statement of claim at page 10 of the record of this appeal she narrated her first encounter with the respondent at Onitsha shortly after the death of their disputed husband thus- “When the plaintiff got to her matrimonial home at 37 Isiokwe Road, Onitsha that evening, to her utter embarrassment she saw the defendant who was acting in concert with other unknown to the plaintiff by way of saying that the plaintiff’s husband was hers and that the plaintiff was a former wife of her deceased husband.”
The appellant stated in paragraph 20 of the statement of claim at page 11 of the record of this appeal that – ” The defendant claimed to have cohabited with my husband on his return to Onitsha but on her own admission she was ordered out of my husbands house in 1994 by the Isiokwe Women Guild (Umuada) due to her unwholesome behaviour towards my husband. The defendant came back after the death of the plaintiff’s husband to assert her status as a wife of the deceased.”
As regards the claim of the appellant, the state of the pleadings demanded her reply to the paragraphs of the statement of defence reproduced above and the other paragraphs therein alleging that Ozodinobi Obiozor in his life time handed over the keys to all the houses to the respondent, she was collecting rents therefrom and paying the school fees of her children and the three female children of Lizzy (the Awka woman) and other facts that are not in the statement of claim.
As the Supreme Court held in UNITY BANK PLC v. BOUARI (2008) 2-3 SC (Pt. 11) 1 a reply is necessary where a statement of defence raises a fresh issue that was not raised or anticipated by the statement of claim. See also EGESIMBA v. ONUZURUIKE (2002) 9-10 SC. Such fresh facts that have been elaborately pleaded with specific details require a specific denial, in a reply. In this case there was no denial at all as no reply was filed. Where a fresh fact is pleaded in a statement of defence, if the plaintiff does not file a reply denying such fact, then he has admitted the fresh facts as correct. The Supreme restated the effect of the failure by the plaintiff to file a reply where necessary in A.G. OF ABIA STATE v. A-G OF THE FEDERATION & ORS (2005) 6 SC (Pt. 1) 63. thus- “Having regard to the several complaints of the plaintiff, one would have expected the plaintiff to file a reply to this averment so that the defence proffered by the 1st defendant would at the very least, be put in doubt. This the plaintiff did not do. Then the legal effect of such a failure surely is recognized as an admission of those facts pleaded by the 1st defendant. It is therefore not a question of estoppel as argued by the plaintiff. The situation therefore is not for the plaintiff to argue that the 1st defendant had wrongly raised the defence of estoppel in law. In my humble view, what the 1st defendant had stated in plain language is, that the plaintiff cannot be heard to complain about the averments made by the 1st defendant that meetings were held to resolve whatever payments were due from the plaintiff in respect of the debts it inherited and those which the State incurred after its creation. In my humble view, the position of the 1st defendant in the circumstances is that the plaintiff having not pleaded anything to the contrary to the averments made by the 1st defendant on the point is estopped from denying that such meetings were held as copiously pleaded in the statement of the 1st defendant as amended.”
So on the pleadings concerning the claim of the appellant, the appellant clearly admitted that Ozodinobi Obiozor in his life time married the respondent under Onitsha native law custom in 1990. She only filed a defence to the counter-claim containing 4 terse paragraphs. In two of the paragraphs she expressly denied paragraph 1 and 2a of the counter-claim.
Paragraph 1 of the counter-claim states that it repeats all the averments in the statement of defence. Paragraphs 1, 2 and 3 of the defence to the counter-claim generally denied paragraph 1 of the counter-claim and the claims therein. This denial of paragraph 1 of the counter-claim amounts in effect to a general traverse of the averments in the statement of defence. What is clear is that there was no specific denial of the specific facts positively clearly and elaborately pleaded with specific particulars in the statement of defence.
Order 17 Rule 2 of the 2006 Anambra State High court (Civil Procedure) Rules provide that- “When a party in any pleading denies an allegation of fact in the previous pleading of the opposite party, he shall not do so evasively, but answer the point of substance. If an allegation is made with diverse circumstances, it shall not be sufficient to deny it along with those circumstances.”
Order 15 rule 5(1) of the 2006 Anambra State High Court (Civil Procedure) Rules prescribe the consequences of lack of specific answer. It provides that “every allegation of fact in any pleadings if not specifically denied in the pleadings of the opposition party shall be taken as admitted except as against a person under legal disability.” There is no evidence and it has not even been suggested that the appellant is under any legal disability. Sub-rule 2 of Rule 5 of Order 15 further provides that “a general denial in any pleading shall not operate as denial of any specific fact in the pleading of the opposition party.”
In the light of the above provisions of the 2006 Anambra State High Court (Civil Procedure) Rules particularly Order 15 Rule 5 therein, the appellant did not deny the statement of defence which was adopted in paragraph 1 of the counter-claim as forming part of the counter-claim and thereby admitted he said statement of defence.
So on the counter-claim and the defence thereto the appellant admitted that the Ozodinobi Obiozor in his life time married the respondent under Onitsha native law and custom.
The above state of the pleading render irrelevant the arguments of Learned counsel for the appellant under issue No. 3 that the customary law marriage between the deceased and the respondent was not established with a high degree of certainty and that there is no evidence of the amount paid as bride price, customary rites of passage and how the marriage was conducted. The need for such evidence can only arise if there is need to prove the existence of such marriage, and such a need can arise if there is a dispute that such a marriage existed. In other words the need for proof can only arise where issues have been joined by the parties on the point. Only the fact denied in the pleadings will require proof and be an issue at the trial. It is only disputed facts that constitute the facts on which the parties have joined issues. They alone call for trial. See Civil Procedure in Nigeria (2nd) Edition at pages 304-305 by Fidelis Nwadialo.
It is trite law that what is admitted need no further proof and that what is admitted on the pleadings ceased to be in controversy between the parties. It needs not be proved at the trial and will be taken as established. See NIPO & ORS v. THOMPSON (1969) 1 NWLR 990 AT 103 AND UREDI v. DADA (188) 1 NWLR 237.
Without regard to this state of the pleadings, the appellant in this appeal is challenging the trial court’s finding of fact that the deceased and the respondent were married under customary law on the ground that the finding of fact is not supported by the evidence. Learned Counsel for the appellant has argued that the evidence adduced by the respondent did not establish the existence of such a customary marriage with a high degree of certainty as required by the decision of the Supreme Court in ABISOGUN v. ABISOGUN & ORS (1963) 2 SCNLR 82.
Learned Counsel for the respondent in his reply argued that the evidence elicited by the respondent establish the existence of the marriage with a high degree of probability as envisaged in ABISOGUN v. ABISOGUN.
Learned Counsel then referred to several parts of the evidence that show the existence of such marriage. The evidence includes exhibits D1 to DIFC photographs accompanied by their negatives showing the ceremony of customary marriage. The photographs were tendered by the respondent while testifying as DW1. She stated under cross-examination that her husband married her in accordance with the native law custom of Onitsha on 24-12-1990. Her written statement on oath which was adopted as her evidence in examination in chief on 6-11-2007 confirmed all the averments in her statement of defence.
DW2 in her written statement on oath adopted as her evidence in examination in chief on 13-11-2007, testified that the respondent is her childhood friend and that she was the respondent’s chief bridesmaid during the respondent’s traditional marriage ceremony in 1990. She also testified that she knew late Ozodinobi Augusstine Obiozor, the late husband of respondent and witnessed their traditional marriage ceremony in 1990 which partly took place in the respondent’s family diokpa’s premises at No. 22 Aduba Lane, Onitsha at Iyiawu village, Onitsha and thereafter at late Ozodinobi Obiazor’s residence at No. 37 Isiokwe Street, Onitsha. She also testified that respondent and her husband lived together at Lagos and Onitsha till his death. She also gave other evidence confirming the testimony of the respondent.
DW3 in his written statement on oath adopted as his evidence in examination in chief on 15-11-2007 stated that-
“1.That I was present during her traditional marriage with one Ozodinobi Augustine Obiozor in 1990 both at my house as the head of the family then and at her husband’s house at 37 Isiokwe Street, Onitsha.
2. That I personally shared the bride price among our kinsmen from Iyiawu village Onitsha in accordance with Onitsha custom.
3. That shortly after the marriage both couple cohabited at the late Ozodinobi Obiozor’s residence at 37, Isiokwe Road and letter left to Lagos residence of late Ozodinobi Obiozor then at Festac Town.
4. That I am aware that both couple cohabited to the exclusion of any other woman till the death of the defendant’s husband in 2006.
5. That I am not aware that plaintiff cohabited with the late Ozodinobi Obiozor between 1990 when he married the defendant till his death in 2006 or at all.
6. That I often visited defendant and the late husband whenever they came to Onitsha from Lagos during festivities like Christmas, Easter or funeral and wedding of their relations or friends and I was always welcomed and entertained by both.
7. That I am aware that the defendant mourned the husband in accordance with Onitsha native law and custom and still does so till date.
8. That I am also aware that the defendant had 3 children for her husband, 1 girl and 2 boys who are all in school presently.
9. That the late Ozodinobi was a titled man and a traditionalist to the core and subject to Onitsha customary laws.”
It is noteworthy that the appellant did not contradict or shake any part of the evidence of the above three witnesses. The cross-examination was silent on the photographs and negatives exhibits DI(a) – DI(f). No question was asked about them. The appellant by failing to cross-examine on the evidence of DW1 that the photographs show the ceremony of the customary law marriage between the respondent and late Ozodinobi Obiozor has tacitly accepted the said evidence as true. As the Supreme Court held in GAJI v. PAYE (2003) 5 SC per Edozie JSC “the effect of failure to cross-examine a witness upon a particular matter is a tacit acceptance of the truth of the evidence of the witness.”
Also since the testimonies of the DW1, DW2 and DW3 were glaringly not contradicted by the appellant, the trial court was bound to act on them as establishing the facts alleged therein. See OMOREGBEE v. LAWANI (1980) 3-4 SC 70, HILARY FARMS LTD & ORS v. M/V MAHTRA & ANOR (2007) 6 SC (Pt. 11) 85 AND OGUNYADE v. OSHUNKEYE & ANOR (2007) 7 SC (Pt. 1) 60. In addition to the admission in the pleadings of the fact of the existence of the customary marriage, and the uncontradicted evidence by DW1, DW2 and DW3 of the existence of the marriage, its existence can also be presumed from the uncontradicted evidence of the ceremony of the marriage on exhibit DI(a) – DI(f) and the uncontradicted evidence that the marriage ceremony was followed by the respondent’s co-habitation with the late husband till he died, as there is no decisive evidence to the contrary. See ANYAEGBUNAM v. ANYAEGBUNAM (1973) ALL NLR 320 ON (1973) 4 SC. Even though, a marriage in licensed place of worship was involved in that case, the statement of general principle of law.
On the presumption of marriage from cohabitation a couple after ceremony of marriage applies in any case where the issue of presumption of marriage arises. The Supreme Court in that case stated that 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.
In the light of the foregoing I hold that the finding of the trial court that there was a customary law marriage between the respondent and Ozodinobi is supported by the above evidence of DW1, DW2, DW3 and exhibits DI(a) – DI(f). I also hold that the finding is justified by the appellants admission of this fact on the pleadings. Therefore issue No. 3 is resolved in favour of the respondent.
I will now consider issues Nos. 2 and 5. Learned Counsel for the appellant argued under issue No. 2 that it is not in the respondent’s place to object to exhibit P1 as evidence of the marriage between the appellant and the deceased Ozodinobi Obiozor, in his life time, at a licensed place of worship. It is for the parties to the marriage to do so.
He also submitted that – “It is in situations like the one at hand when section 32 of the Marriage Act will work hardship that the Anyaegbunam’s case established the principle that-
“It will be inappropriate to suggest that the only way to prove a birth, death or marriage is by the production of the relevant certificate.”
Another submission of Learned Counsel for the appellant is that the evidence of PW1 of the ceremony marriage between her and the deceased (exhibit P1), of her cohabitation with the deceased following the ceremony of marriage was not contradicted under cross-examination and that there was no decisive evidence rebutting the above evidence. According to Learned counsel, the trial court did not consider the above evidence and that S. 82(1) and (2) of the Matrimonial Causes Act empower him to consider such facts and believe them either way.
The Learned Counsel stated that exhibit P1 was undoubtedly not in the form prescribed by S. 32 of the Marriage Act but that there was such further evidence which when added to exhibit P1 would have led to the presumption that there was a valid marriage between the deceased and the appellant. Learned counsel relied heavily on the Supreme Court decision in ANYAEGBUNAM v. ANYAEGBUNAM (1973) ALL NLR 320.
Learned counsel for the respondent argued in reply that –
1. Exhibit P1 contravenes Ss. 22(1) and 26(1) of the Marriage Act
2. The authority of Anyaegbunam v. Anyaegbunam (supra) do not apply to the facts of the present case.
3. The Marriage Act and the Matrimonial Causes Act recognize only two forms of marriage in Nigeria, namely Marriage under marriage Act and customary/Islamic marriage.
4. It is an erroneous view, as held by the appellant, that a court can infer from further evidence coupled with exhibit P1 to presume the existence of a marriage between the deceased and the appellant.
Learned Counsel then asked what form of marriage would that be when no form of marriage was successfully proved.
5. The appellant’s cohabitation with the deceased is of no moment in proving the form of marriage alleged in the statement of claim.
6. The appellant in her pleadings did not plead any incidence of customary law and led no evidence to prove same.
7. Exhibit P2 is invalid by virtue of S. 33(1), 47(1) of the Marriage Act and S. 3(1) of the Matrimonial Causes Act as the customary law marriage between the respondent and the deceased in 1990 was subsisting when in 1998 the registry marriage between the appellant and the deceased took place in 1998 as per exhibit 2.
The part of the judgment complained against by the appellant under this issue is already reproduced in pages 23-26 of this judgment.
It is obvious from the arguments of Learned Counsel for the appellant that he is no complaining against the part of the trial court’s judgment that exhibit P1 does not meet the requirements of the Marriage Act. His complain is that the trial court is wrong to have held that exhibit P1 is of no assistance to the plaintiff and refuse to consider that exhibit P1 was evidence of the ceremony of marriage, that there was evidence of the appellants cohabitation with the deceased and the fact that there was no decisive evidence o the contrary.
On the pleadings the existence of a valid marriage recognized by law between the appellant and Ozodinobi Obiora was in dispute. The appellant stated in paragraphs 1 and 2 of the statement of claim that- “The marriage of the plaintiff and Augustine Amaechi Obiora Obiozor of Agagwu family, Isiokwe village, Onitsha was solemnized at All Saints Cathedral, Onitsha on the 14th day of July, 1973 according to the Rites and Ceremonies of the Church of the Province of West Africa after Banns by A. E. D Mgbemena, in the presence of witnesses. The document evidencing the said Church Marriage and a Certificate of Marriage subsequently issued on the 16th of January, 1998 are hereby pleaded and shall be relied upon at the trial. The plaintiff was the first and only person legally married by her late husband throughout his lifetime. The plaintiff cohabited with her husband until his death on the 5th day of August, 2006 at Leeds Hospital Modebe Avenue, Onitsha.”
The respondent stated in paragraphs 2 and 3 of the statement of defence thus-
2. “The defendant denies paragraph 1 of the statement of claim and state that there is no facts supporting any valid marriage recognized by law between plaintiff and late Ozodinobi Augustine Obiozor till his death on 5/8/2006.
3. In further answer to the said paragraph 1 defendant puts plaintiff to strict proof of the allegation of marriage at the All Saints Cathedral and state that there was no valid statutory marriage between plaintiff and defendant’s late husband Ozodinobi Augustine Obiozor.”
Since issues were joined by the parties on the pleadings on the existence of such a marriage it became necessary to prove its existence. Since it is the appellant that assert the existence of the marriage she had the legal burden to proof the existence of the marriage. Furthermore she is relying on the existence of that fact to assert her legal right to the estate of Ozodinobi Obiora. So by virtue of Ss. 131(1), 132 and 133(1) of the 2011 Evidence Act she has the burden to prove the existence of that fact. In ANYAEGBUNAM v. ANYAEGBUNAM (supra) the Supreme Court held that…. so far as the burden of proof is concerned, the burden of proving that there is a subsisting lawful marriage shifted by the respondent/appellant’s unequivocal denial of its validity on to the petitioner/respondent. As there are other matters which point to its invalidity, she could not and did not escape this burden by merely resting her case on the few immaterial admissions of the respondent/appellant both as to the formalities of the ceremony at Abatete and as to the period of cohabitation which followed.”
The appellant testified in support of the averment in paragraphs 1 and 2 of the statement of claim and tendered exhibits P1 and P2 to establish the existence of the said Church marriage and statutory marriage. Learned counsel for the appellant at all times both in his final address at the trial court and in the appellants brief in this court conceded that “Exhibit P1 is undoubtedly not in the form prescribed by the Marriage Act. See section 32 thereof.” In any case there is no ground of this appeal challenging the decision of the trial court that exhibit P1 does not qualify as a Marriage certificate under the Marriage Act.
The argument of appellant under this issue is that even though it does not comply with S. 32 of the Marriage Act, the trial court was wrong to have held that it was of no assistance to the plaintiff and refused to treat it as evidence of the ceremony of the marriage at All Saints Cathedral, Onitsha. Learned Counsel for the appellant in one of his question and answer argument stated thus – “Is there evidence of ceremony of marriage between the deceased and the appellant? The answer is yes. Exhibit P1 which was tendered by the appellant, a co-maker thereof, without any objection to its authenticity.”
This argument contradicts his earlier submission that “Exhibit P1 is undoubtedly not in the form prescribed in the Marriage Act. See section 32 thereof.” If exhibit P1 is not as prescribed by S. 32 of the Marriage, how can it qualify as evidence of the ceremony of marriage. S. 32 of the Marriage Act provides that- “Every certificate of marriage which shall have been filed in the office of the registrar of any district, or a copy thereof, purporting to be signed and certified as a true copy by the registrar of such district for the time being, and every entry in a marriage register book, or copy thereof certified as aforesaid, shall be admissible as evidence of the marriage to which it relates, in any court of justice or before any person having by law or consent of parties authority to hear, receive, and examine evidence.”
There is nothing in exhibit P1 or in any part of the evidence on record showing that it was filed in the office of the registrar of Marriages in the district where the marriage is alleged to have taken place or any district at all. It is glaring from the provisions of S. 32 of the Marriage Act that it is implicit therein that a marriage certificate or its certified true copy and an entry in a marriage register book or a certified true copy shall not be admissible as evidence of the marriage to which it relates unless it had been filed in the office of the registrar of marriages of the relevant district. S. 86 of the Matrimonial Causes Act Cap 220 Vol. XII Laws of the Federation of Nigeria 1990 provide that- “In proceedings under this Act the court may receive as evidence of the fact stated in it, a document purporting to be either the original or a certified copy of any certificate, entry or record of a birth, death or marriage alleged to have taken place whether in Nigeria or elsewhere.”
It is obvious that S. 86 of the Matrimonial Causes Act does not stipulate any condition precedent to the admission in evidence of the original or certified true copy of a certificate or entry in a marriage register book of a marriage under the Marriage Act. It provides for not only proof of birth and death but also marriages generally. S.32 of the Marriage Act provides for only proof of marriage under the Marriage Act. So S. 86 of the Matrimonial Causes Act is a general provision while S. 32 of the Marriage Act is a special provision. Therefore S. 32 of the Marriage Act will override S. 86 of the Matrimonial Causes Act on proof of marriage under the Marriage Act by virtue of the general legal principle of statutory interpretation that where there are two statutory provisions over the same subject matter, the one that deals specifically with that subject matter will override the other that deals with it generally or as part of a group of subjects. This principle is often expressed in the maxim that special a provision overrides a general provision. So S. 86 of the Matrimonial Causes Act cannot be relied on to avoid compliance with the requirement in S. 32 of the Marriage Act that every certificate of marriage or its certified true copy and every entry in the marriage register book or a certified true copy of same shall have been filed in the office of the registrar of marriages of the relevant district before it can be received as evidence of the marriage to which relates. I therefore hold that by virtue of S.32 of the Marriage Act exhibit P1 is not legally admissible evidence of the ceremony of marriage between the appellant and the late Ozodinobi Obiozor at All Saints Cathedral, Onitsha on 14-7-1973.
In ANYAEGBUNAM v. ANYAEGBUNAM (supra) at page 331 the Supreme Court considered the legal effect of a document exactly the same with exhibit P1 and held that “In the case in hand, the only evidence adduced before the court is that of the respondent/appellant who testified in categorical terms that what took place in the Church of the Holy Name of Mary on 28th January, 1961, was a “church blessing” and not a marriage. One would have thought that the petitioner/respondent would have produced the marriage certificate or a certified copy thereof, or called the Priest who performed the ceremony, or if the priest was not available, explain why and then call any of the witnesses or any of those who were present at the ceremony. Instead she offered no evidence and only put in the document (Ex. 6) to which we have referred earlier. To our mind, this document, described by the person who wrote it as a “Certificate of Marriage” is not in the form prescribed in Form E in the First Schedule to the Marriage Act. It could not even be regarded as a public document nor could it be described as the original or a certified copy of any certificate, entry, or record of … marriage. “A marriage register was referred to in the document but the register was not produced nor was the failure to produce it accounted for. At best, this document contains the hearsay evidence of what somebody called Father H. Roche could have come to court to say on oath and be cross-examined by the respondent/appellant. No reason was given why this priest was not called. As proof of the marriage it is, in our view, completely lacking in weight and value.”
The Learned trial Judge was therefore right to have held that exhibit P1 was of no assistance to the appellant.
I agree with the submission of Learned counsel for the appellant that the Supreme Court held in ANYAEGBUNAM v. ANYAEGBUNAM that the original or certified true copy of a certificate of marriage under the Marriage Act is not the only evidence of such marriage under the Act under S. 32 of Marriage Act. There is also the entry in a marriage register book or its certified true copy clearly stated in S. 32 of the Marriage Act. It is implicit in the above quoted judgment of the Supreme Court in ANYAEGBUNAM v. ANYAEGBUNAM that it took the view that the testimony of the Priest who performed the ceremony, and if the Priest cannot be called as a witness, after explaining the reason for his absence, the testimony of any other person who was present during the ceremony constitute other evidence that can be relied on to prove the nature of the ceremony that took place in the Church. The Supreme Court also held that- where there is evidence of a ceremony of marriage having been gone through, followed by the co-habitation of the parties, every thing necessary for the validity of the marriage will be presumed, in the absence of decisive evidence to the contrary.
The question that arises at this juncture is whether in the absence of the evidence as required by S. 32 of the Marriage Act, there was any other evidence of a ceremony of marriage between the appellant and the deceased at All Saints Cathedral. As, I had held herein the burden is on the appellant to prove that all the formalities for the existence of a valid marriage in a licensed place of Worship under the Marriage Act existed.
The appellant in her written statement on oath adopted as her evidence in examination in chief on 12-7-2007 stated that-
1. “Augustine Amaechi Obiora Obiozor of Agagwu Family, Isiokwe Village, Onitsha was my husband until he died on the 5th day of August, 2006 at Leeds Hospital, Modebe Avenue Onitsha.
2. The marriage between Augustine Amaechi Obiora Obiozor and myself was solemnized at All Saints Cathedral Onitsha, on the l4th day of July, 1973, according to the Rites and Ceremonies of the Church of the Province of West Africa after Banns by A. E. D Mgbemena, in the presence of witnesses. I have a document evidencing the said marriage. A Marriage Certificate was subsequently issued and I have them in my possession.
3. That my husband never married any other person including the defendant during his lifetime.
4. That I cohabited with my husband at Sapele, Calabar and Lagos where he retired in 1989 and we continued to cohabit until his death on the 5th day of August, 2006.”
She did not testify and led no other evidence to show that a Minister granted a licence authorizing the celebration of the marriage between her and the deceased by a registrar or by a recognized minister of some religious denomination or body and that they delivered such a license to A. F. D. Mgbemena, before he celebrated the marriage. A. F. D. Mgbemena, the Minister who celebrated the Marriage was not called to testify and there is no evidence explaining why he could not come to testify as a witness of what transpired. The names of witnesses alleged to have been present were not mentioned and non of them was called to testify that such ceremony took place.
In the absence of evidence that the registrar’s certificate or a minister’s license was obtained and delivered to A. F. D. Mgbemena before he celebrated the marriage or that the omission to obtain it was not willful or knowingly, the ceremony of marriage, even if it is proved to have held, will be void. S. 13 of the Marriage Act provides that- “The Minister upon proof being made to him by affidavit that there is no lawful impediment to the proposed marriage, and that the necessary consent, if any, to such marriage has been obtained, may, if he shall think fit, dispense with the giving of notice, and with the issue of the certificate of the registrar, and may grant his licence, which shall be according to Form D in the First Schedule, authorizing the celebration of a marriage between the parties named in such licence by a registrar, or by a recognized minister of some religious denomination or body.”
S. 22 of the Marriage Act provides that – “A minister shall not celebrate any marriage if he knows of any just impediment to such marriage, not until the parties deliver to him the registrar’s certificate or the licence issued under section 13 of this Act.”
S. 33 (2)(c) and (3) of the Marriage Act provides that- “A marriage shall be null and void if both parties knowingly and willfully acquiesce in its celebration, without a registrar’s certificate of notice or licence issued under section 13 of this Act duly issued;
The Supreme Court in ANYAEGBUNAM v. ANYAEGBUNAM (supra) applied the above provisions of the Marriage Act and held that- “The respondent/appellant testified in categorical terms that no registrar’s certificate was obtained before the ceremony at Abatete. Not only did the petitioner/respondent not dispute this statement she did not think it prudent enough to go into the witness box, as had been done by the petitioner in the two Nigerian cases referred to earlier, and testify that the omission to obtain the necessary Registrar’s certificate was not done “willfully and knowingly.” This omission on her part not only makes the purported marriage null and void, it also lends additional support to our view that the learned trial judge, faced with all these irregularities, was in error in entertaining the petition.”
Considering the foregoing, a valid marriage cannot be presumed to have existed between the appellant and late Ozodinobi by reason of the fact of their cohabitation for some time following the alleged ceremony of All Saint Cathedral in 1973, in the absence of any evidence that S. 22 of the Marriage Act was complied with before the ceremony held.
Learned counsel for the appellant also argued under issue No. 5 that exhibit P2, made 25 years after the purported ceremony marriage at All Saints Cathedral, Onitsha, and eight years before the death Ozodinobi Obiozor supports the inference of the existence of a marital relationship between the appellant and the deceased. But the trial court had held that exhibit P2 and the marriage to which it relates is invalid by virtue of S. 33(1) of the Marriage Act which renders invalid any statutory marriage which was contracted whilst a customary law marriage with a third party was still subsisting and that the respondent had adduced evidence that sufficiently established that the late Ozodinobi Obiora became married to the respondent under customary law in 1990 and that the said customary law marriage was subsisting in 1998 when the marriage under exhibit P2 allegedly took place and exhibit P2 was made.
In ground 9 of this appeal the appellant complained that-
“ERROR IN LAW
The learned trial judge erred in law when he disregarded Exhibit P2.
Particulars of Error
(a) Exhibit P2 conforms with the formal requirements of law.
(b) It was not denied that Obiora Obiozor was a co-maker of Exhibit P2.
(c) The existence of Exhibit P2 when coupled with the entire circumstances of the church blessing of 1974 and the insufficient evidence of customary marriage of 1990 will be to the benefit of the plaintiff.”
There is no argument under issue No. 2 and issue No. 5 or in any part of the appellants brief or reply brief contending that the trial court was wrong to have held that exhibit P2 was invalid by virtue of S. 33(1) of the Marriage Act. Learned Counsel had rather argued under issue No. 3 of the appellants brief that the evidence elicited by the respondent did not establish with a high degree of certainty the existence of a customary law marriage. I have already held herein that the existence of such marriage was established on the pleadings and the evidence.
I agree with the submission of Learned Counsel for the respondent that the marriage under exhibit P2 and exhibit P2 is void by virtue of S. 33(1) of the Marriage Act and S. 3(1) of the Matrimonial Causes Act since as at 1998 when the marriage under exhibit P2 allegedly took place between the Ozodinobi Obiora and the appellant, Ozodinobi Obiora was still validly married to the respondent under Onitsha customary law.
A void marriage certificate cannot support the inference of the existence of a marital relationship between the appellant and the deceased for something cannot come out of nothing (exnihilo nihil fit).
Learned counsel for the appellant referred to their evidence that the appellant embraced the deceased during his Ozo title taking ceremony, which the appellant insists occurred before 1990, the facts in paragraphs 10, 17 and 17 of the statement of defence that Ikechukwu, deceased’s nephew introduced appellant as deceased’s wife to the respondent and urged that she be allowed to participate in the funeral of the deceased, that the said Ikechukwu connived with the appellant to sell the deceased’s property and that both were sued in a customary court and argued that these are clear admission by the respondent that the appellant is in good terms with the deceased’s relatives.
Let me quickly point out here that the allegation in paragraph 12 of the statement of defence is that- “Ikechukwu Obiozor, a nephew to her late husband who introduced the plaintiff as a former wife of late Ozodinobi A. Obiozor and pleaded with her to allow the plaintiff to participate in the burial.” Learned counsel for appellant in restating these facts removed the word “former”. It is obvious that this restatement slanted and distorted the facts. This is not correct. The arguments of counsel must be based on the facts as contained in the record of the proceedings of a court. It will not help the course of justice for counsel to put the facts differently and argue on the basis of the distorted facts. That the appellant was introduced as a “wife” is completely different from the statement that she was introduced as a “former wife.” It is noteworthy that the respondent’s evidence in examination in chief in support of the averment in paragraph 12 of the statement of defence that Ikechukwu introduced the appellant to the respondent as a former wife of the late Ozodinobi was not challenged or contradicted under cross-examination and was not denied by the evidence of the appellant. By this failure to challenge or contradict that testimony, the appellant tacitly accepted it as correct. See GAJI v. PAYE (supra). While the appellant can rely on this and the other facts to show her close relationship with Ikechukwu, she cannot rely on them to urge this court to infer the existence of a marital relationship between she and Ozodinobi Obiora. The status of a former wife is inconsistent with an existing marital relationship. Even if she was introduced as a wife to the respondent that cannot make her a wife.
Paragraph 12 of the statement of defence and the respondent’s unchallenged testimony in support thereof state that the respondent refused to accept the plea of Ikechukwu to allow the appellant participate in the burial because the late husband in his life time did not tell the respondent that appellant was his wife.
I find the argument of the Learned counsel for the appellant that “we concede to none of those points as being factually correct, in terms of the incidents, occurring, yet we rely on them as clear admission by the respondent that the appellant is in good terms with the deceased’s relatives” as contradicting. It is incongruous to argue that certain facts are not true and yet rely on them as admissions in your favour. It would have made more sense if the argument had been in the alternative, that is to say, the facts are not correct, but assuming they are, they will amount to admissions in favour of the appellant. Further more, the argument that those points are not factually correct is invalid because unchallenged and uncontradicted credible evidence cannot be described as factually not correct by Learned Counsel to a party who had the opportunity to deny same by her own testimony or challenge and contradict same by cross-examination of the witness that gave the evidence but failed to do so. As held by the Supreme court in a long line of cases including OMOREGBE v. LAWANI (SUPRA), HILARY FARMS LTD v. MANTRA & ANOR (SUPRA) AND OGUNYADE v. OSHUNKEYE (SUPRA) any admissible and credible evidence that is not denied, or challenged is contradicted shall be taken as establishing the truth of what it contains.
In any case, the fact that the appellant has a good relationship with Ikechukwu, the deceased’s nephew, does not relieve her of the legal burden to prove the existence of a valid marriage between her and the deceased. As already held herein, she has failed to prove the existence of a marriage under the Marriage Act. Now that she has urged this court to infer the existence of a marital relationship from the fact that she embraced the deceased in the family square when he took the Ozo title in his life time, the fact that she was in good terms with Ikechukwu Obiozor and that she co-habited with the deceased some time before he moved finally to live permanently in Onitsha, what type of marriage does she want this court to infer? In her pleadings she did not present a case that late Ozodinobi married her under any type of customary law. She only pleaded marriage in a licensed place of Worship and Marriage in a registrar’s office. Since the appellant did not plead that she and the deceased were married under customary law, can this court infer that such marriage existed between them? I do not think so. In trial by pleadings a party’s case, even on appeal, must be consistent with her pleadings. A party cannot make a case inconsistent with his or her pleadings or urge the court to make a finding or draw an inference inconsistent with the case on the pleadings.
Secondly the existence of Customary Law Marriage, unless admitted, must be prove by evidence. Where it is disputed that there was any marriage at all, the existence of a Customary Law Marriage must be proved by evidence. The evidence must be on facts contained in the pleadings. So if the existence of such a marriage is not pleaded, evidence cannot validly be led to prove it. Any evidence led to prove the existence of a Customary Law marriage that is not pleaded go to no issue.
As it is, the appellant failed to prove the license or a marriage in marriage registry and did not plead the existence of a marriage under customary Law. I agree with the submission of Learned Counsel for the respondent that against this background it is erroneous for the appellant to hold the view that this court can infer from other facts that she and Ozodinobi Obiora were wife and husband. Learned Counsel for the respondent correctly asked, what type of marriage that would be. I also agree with the submission of Learned Counsel for the respondent that under Nigerian law, a marriage can be either a marriage under the Marriage Act or customary Islamic law marriage. This is obvious from the tenor of the Marriage Act. In OBIEKWE v. OBIEKWE (1963) 1 NLR 196 Palmer J held that “if the parties had not been validly married under the Ordinance, then either they are married under the custom or they are not married at all.”
Learned Counsel for the appellant argued that the appellant was on good terms with the deceased’s relatives, that no person from Ikechukwu’s family came out openly to say that what Ikechukwu did was wrong, and that the respondent did not explain the closeness between the appellant and the deceased’s relatives.
The statement of claim and the testimony in examination in chief of the appellant show that she had a relationship only with one member of the deceased’s family, namely, Charles Ikechukwu Obiozor, the nephew to the deceased, whom she referred to as the Acting Diokpa or Head of Agagwu family. She acknowledged reporting the respondent to Akunne Sunday Obiozor as the member of the family. There is no pleading or evidence that she was in good terms with any other member of the deceased family.
The respondent averred in paragraph 28 of her statement of defence that she “has been living with her husband, late Ozodinobi Obiozor uninterruptedly till his death on the 5th August 2006 and was never for once confronted by the so called Woman Guild of Isiokwe. She has been in best of terms with her husband’s genuine relations including his senior brother and present diokpa, Akunne Sunday Obiozor of whom Ikechukwu took undue advantage of his sight problem to wreck havoc in the family.”
The respondent also averred in paragraph 35 of the statement of defence that- “The defendant admits paragraph 23 to the extent that she has been collecting rent from all the tenants who in fact saw the plaintiff for the first time ever during the preparation of the burial of late Ozodinobi, but denies that she collected rent after the funeral, as Ikechukwu went with thugs on the prompting of the plaintiff to warn the tenants not to pay rents any more to the defendant an action which prompted Akunne Sunday Obiozor to admonish and reprimand Ikechukwu and advised the defendant to keep in tact all the receipts of expenses including school fees so that she would recoup same as soon as things normalize.”
The respondent had also averred in paragraph 25 of the statement of claim that- “In further answer to paragraph 18, the defendant states that the plaintiff came in the company of policemen from Isiokwe Police station to arrest her few days after the burial of her husband when she was still under customary confinement insisting that she must be taken away, an act which was sacrilegious under Onitsha custom, it was only on the intervention of the diokpa one Sunday Obiozor who was alarmed and furious over the plaintiffs conduct and thereafter advised the policemen to go and come back after the mandatory 28 days period of mourning if plaintiff so insists, till date nothing has been heard of the complaint again.”
The appellant did not in any of her pleadings dispute and join issues with the respondent on the latter’s relationship with Akunne Sunday Obiozor and his interventions on behalf of the respondent in the above situations and thereby, admitted the respondent’s pleadings on these facts. The testimony in examination in chief of the respondent that Akunne Sunday Obiozor intervened to prevent respondent’s arrest by Police Officers brought by the appellant to arrest the respondent who was on customary confinement as part of the customary rite of mourning her husband, was not challenged or contradicted under cross-examination.
It is even clear from the pleading and the evidence of both sides that the respondent and Ikechukwu, though not in good terms had some form of relationship. Both have acted together in some instances even though Ikechukwu was hostile to the respondent. The respondent explained this hostility as caused by her opposition to his schemes to sell her husband’s properties. It was Ikechukwu’s father, late Francis Obiozor as the diokpa of the deceased family that presided over the ceremony of customary law marriage between the deceased and the respondent, along with the diokpa of her own family in 1990. Also the respondents, brother, Emeka Nnanna and Ikechukwu Obiozor deposited the body of the Ozodinobi Obiozor after his death at Boromeo Hospital. Ikechukwu caused the respondent to signed the document of sale of one of the husband’s plot of land to raise N1,500,000.00 to finance the burial ceremony. It is obvious from the totality of the evidence that the argument that the appellant was close to the decease relatives and the impression thereby that she was more entrenched in the family than the respondent is not supported by the pleading and the evidence. In any case the relationship with the family is not the determinant of the existence of a valid marriage.
Finally, let me consider the argument of Learned Counsel for the appellant that it is not in the respondent’s place to object that exhibit P1 is not in conformity with S. 32 of the Marriage Act, that only the couple to the marriage can do so and that is the theme of the decision in ANYAEGBUNAM v. ANYAEGBUNAM (supra). I have calmly and carefully read the Supreme Court decision in Anyaegbunam’s case, there is no part of it holding that in the trial of the existence of a marriage under the Marriage Act, only the parties to the marriage can challenge the admissibility of a document as a Marriage Certificate for non compliance with S. 32 of the Marriage Act. The suit at the trial court from which this appeal arose was originated by the appellant against the respondent. From the state of the pleadings, it was clear that the parties joined issues on the existence of a marriage under the Marriage Act, whether by way of a marriage in a licensed place of worship or one in a Marriage Registry, between late Ozodinobi Obiora and the appellant and therefore the appellant had a duty to prove its existence by legally admissible evidence.
The appellant sought to rely on exhibit P1 as evidence of a marriage in a licensed place of worship between her and the deceased. The respondent as a party in the case is entitled to object to the admissibility of the document as evidence in the case. This is the right of every party in a case. There is no law that takes away the right of a party to a proceedings to object to the admissibility of a transaction because he or she was not a party to the transaction. It is the entitlement of every party to a proceedings to ensure that the evidence sought to be introduced against him or her in the proceeding is legally admissible evidence and that it is being introduced in compliance with law. He or she cannot be denied that right or else there will be no fair hearing.
In the light of the foregoing I resolve issues Nos. 2 and 5 in favour of the respondent.
Let me now consider issue No. 4. Learned counsel for the appellant has argued that it was never at any time in the proceedings in the court below seriously disputed that the appellant did not have any issues for the deceased, no argument was offered by the respondent against the existence of these issues that when PW1 (appellant) was cross- examined, the respondent’s Counsel did not touch on that point at all, and that the respondent would really in law be deemed to have accepted as true the appellant’s testimony on the existence of those two children of the deceased. Learned counsel for the respondent argued in reply that the respondent in her pleadings and evidence disputed the assertion of the appellant that she had two children for late Ozodinobi Obiozor and that the appellant failed to produce any evidence like birth certificate, baptismal certificate to prove that she gave birth to such children and that the deceased was their father. Learned counsel also submitted that the pleading and evidence of the respondent that the appellant had never given birth to any child in her life and that she has now struck menopause and thereby passed child bearing age was not challenged by the respondent and that this failure to challenge the evidence amounted to an admission of the evidence.
It is obvious from the pleadings of both sides that they joined issues on whether the appellant had two children for late Ozodinobi Obiozor or not. The appellant in paragraphs 12 and 13 of the statement of claim stated that- “Our marriage was on the 2nd day of April, 1999, blessed with a baby girl who my husband personally named Deborah Nwamaka Obiozor. On the 18th day of March 2006, plaintiff’s marriage with her husband was again blessed with a bouncing baby boy who was named Obiajulu Obiozor by my husband.”
These averments were denied by the respondent in paragraphs 15, 16 and 40 of her statement of defence and counter-claim as follows- “Paragraphs 12 and 13 are denied and in answer thereto defendant states that up till date plaintiff who is now heading to 60 years of age had no issue for anybody how much more having an issue for Ozodinobi A. Obiozor with whom she was never legally married. Defendant denies that Ozodinobi A. Obiozor her husband was responsible for the pregnancy of the 2 babies purportedly given birth to by plaintiff nor did he ever names them. Plaintiff belongs to Onyeoma Ejogu age grade in Onitsha within the age bracket of 55 to 58 years. The plaintiff is not entitle to the relief s contained in paragraph 27 1 to 5 at all since she is a stranger to the family of Ozodinobi and never gave any birth to him in his life time nor did she ever give birth to any issue.”
By this joinder of issues on the point in the pleadings the appellant had advance notice that she was required to prove her assertion that she gave birth to two children for late Ozodinobi Obiozor.
The appellant, in examination in chief testified that- “Our marriage was on the 2nd day of April, 1999, blessed with a baby girl who my husband personally named Deborah Nwamaka Obiozor. On the 18th day of March, 2006, plaintiff’s marriage with her husband was again blessed with a bouncing baby boy who was named Obiajulu Obiozor by my husband.”
I agree with the Learned Counsel for the appellant that this testimony of the appellant was not challenged in cross-examination. But I do not agree that the respondent by not challenging this testimony of the appellant in cross-examination has admitted it as a true narration of the facts therein because the respondent in her testimony in examination in chief denied the above testimony of the appellant. She stated that- “That my husband was never responsible for the 2 babies allegedly given birth to by the plaintiff in 1999 and 2006 respectively, plaintiff did not give birth to any issue either for my husband or any other man.”
The appellant equally did not challenge this testimony during cross-examination of the respondent. The legal principle that a party who fails to challenge the testimony in examination in chief of an adverse party or his witness during cross-examination thereby admits that testimony as a correct and true narration of the facts contained therein will not apply where the said party has elicited other evidence denying the testimony of the said adverse party.
Since the testimony in examination in chief of the appellant is denied by the testimony of the respondent, the appellant needed to introduce further evidence to prove that she gave birth to two children for late Ozodinobi Obiozor. This she failed to do. She did not plead nor produce any birth documents, baptism certificate even school record or other documents of the said two children or call the evidence of a member of the family to acknowledge that their late brother is their father. There is no part of her testimony that suggests that late Ozodinobi acknowledged the paternity of her children while alive. On the preponderance of evidence or balance of probabilities she failed to prove the birth and existence of the said children. Since one of the reliefs sought by her in the writ of summons and statement of claim is that her children by late Ozodinobi Amaechi Obiozor are entitled to his estate, it becomes necessary that it be proved on a preponderance of evidence that she and the deceased gave birth to such children. Such proof cannot be discharged on her disputed assertion in her evidence in chief that she gave birth to such two children for late Ozodinobi Obiozor. She should have followed the example of the respondent who did not rely on her disputed assertion in her examination in chief alone, but went further to produce birth and Church baptism certificates of each child wherein the names of the parents are indicated. The certificate of confinement and birth of each child made during the life time of the deceased when this suit was not contemplated contain detailed information of each child at birth, the mother’s immunization chart. The respondent gave copious and unchallenged evidence that late Ozodinobi Obiozor in his life time acknowledged the paternity of his children by her and the children of Lizzy (the Awka woman).
I agree with the submission of Learned counsel for the appellant that the trial court did not consider his argument on this point in his final address following close of evidence in that case. I also agree with the submission of Learned Counsel that the trial court erred in law for failing to do so. It is trite law that a court has a mandatory duty to consider all the issues raised in the proceedings before it and decide them one way or the other. See UDENGWU v. UZUEGBU & ORS (2003) 7 SC 64 and A.G. LEVENTIS NIG. PLC v. AKPU (2007) 6 SC (Pt. 1) 239. It is now obvious that this error did not occasion a miscarriage of justice, because even if the trial court had given the issue due and adequate consideration, its decision dismissing the claim that two children of the appellant are entitled the estate of late Ozodinobi would not have changed. This is because, as I have already herein, the appellant did not prove on a preponderance of evidence the birth and existence of the two children and that late Ozodinobi Obiozor is their father. Their entitlement to the estate of late Ozodinobi Obiozor is dependent on the existence of the above facts. So the burden is on the appellant who claimed that they are so entitled because they are his children, to prove by preponderance of evidence that they are really late Ozodinobi’s children. See Ss. 131, 132 and 134 of the 2011 Evidence Act.
In all of these, I think there is a more fundamental point which is brought out by the argument of Learned Counsel for the appellant that “it is a settled state of our law that no orders will be made against a person who is not a party originally appearing or joined by court or any of the original parties.” Learned counsel for the respondent came out more clearly in his argument that the Learned trial judge did not consider the claims of either party as it relates to alleged offspring of the deceased for obvious reasons. It is trite law that a trial court is not to make an order that will affect thLearned counsel for the respondent came out more clearly in his argument that the Learned trial judge did not consider the claims of either party as it relates to alleged offspring of the deceased for obvious reasons. It is trite law that a trial court is not to make an order that will affect the interest of a non party to the suit. These interest of a non party to the suit.
These arguments raise the issue of the competence of the claim in paragraph 27(2) of the statement of claim that the children of the appellant are entitled to the estate of late Ozodinobi Obiozor, when the said children are not parties to the suit. It is the appellant that brought the suit and made the claim in question. In respect of the claims relating to the estate of late Ozodinobi Obiozor the suit ought to have been brought in a representative capacity or with the said children as co-plaintiffs suing by their next friend (who could be their mother). But this was not done. The right or interest of the children in the estate of their father is in law distinct from that of their mother irrespective of whether she is married to their father or not. Where (as in this case) a father is a person subject to customary law and married under native law and custom before his death, all his children whether born within that customary law marriage or not are entitled to inherit a share of his estate in accordance with the prevailing rule of native law custom. Therefore a suit to enforce their said right that is likely to affect their said right cannot be determined unless they are made parties thereto. It is beyond argument that they are necessary parties to the suit in respect of the claim in paragraph 27(2). Without joining them as parties thereto the claim cannot be fairly dealt with. In any case, the said children not being parties to the suit cannot be bound by any decision of the trial court. The trial court did not decide the issue of the paternity of the appellant’s children and their entitlement to the estate of late Ozodinobi Obiozor. The dismissal of the appellants claims did not determine the issue of their paternity and their entitlement to the estate of Ozodinobi Obiozor. It does not bind the said children. The trial court only determined the issue of who amongst the appellant and the respondent was validly married to late Ozodinobi Obiozor and is as result entitled to share in his estate. The appellant is not prejudiced in anyway by the dismissal of her claim after holding that she had failed to prove same on a balance of probabilities.
The said children of the appellant are not prejudiced by the judgment as it relates to the counter-claim, because the judgment did not determine the counter-claim for the relief in 2(b) for- “Declaration that Obiorah Obiozor and Augustine Nnamdi Obiozor being the only male issues born to late Ozodinobi Augustine Obiozor are entitle to inherit his landed property in accordance with Onitsha native law and custom that should guide the distribution of his estate.”
The judgment determined that the appellant was not married to late Ozodinobi Obiozor, declared exhibits P1 and P2 void and found that the respondent and Ozodinobi Obiozor were married under customary law. The judgment in substance granted the counter-claims for the reliefs in paragraphs 2(a), 2(c) and 2(d) relating to the marriage. I think that the grant of the counter-claim for the relief in paragraph 2(e) is justified by the uncontradicted pleadings and evidence of the respondent that late Ozodinobi Obiozor in his life time allowed the respondent to manage his entire estate. She has continued to do so, collecting rents and paying the school fees of her children and those of Lizzy as she was instructed by her late husband.
The respondent in paragraphs 29 and 30 of the statement of defence stated that- “All the tenants of No. 37 Isiokwe Street, whose names and number of rooms occupied as well as the amount payable monthly are well known to the defendant to whom they sometimes on the instruction of Ozodinobi pay their house rents to, this was an idea devised by Ozodinobi himself since it was the defendant who paid school fees of the six children of Ozodinobi comprising 3 from herself and 3 from Lizzy the estranged wife of late Ozodinobi Obiozor. The defendant still collects rents till date from tenants of No. 224 Ilogbo Street Lagos where she lives and also disburses same to train her 3 children and children of Lizzy. Duplicate copies of receipt of rents issued to all the tenants are hereby pleaded.”
The respondent had also averred in paragraphs 8, 11, 13, 22 and 24 of the statement of defence as follows-
8. “In answer to paragraph 5, the defendant states that it was while the late Ozodinobi Obiozor was living at the 5th Avenue Festac Town Lagos with the defendant that they both commenced with the building of the house at No. 224 Ilogbo Street Ilogbo Lagos where the defendant later personally built a 3 bedroom flat and a big shop in which she carries on the business of liquor distribution and rented one flat and two shops to tenants. Defendant shall at trial rely on receipts with which she procured materials for the said building.
11. Paragraphs 8, 9 and 10 of the statement of claim are denied, in 1993 plaintiff had nothing in common whatsoever with the late Ozodinobi A. Obiozor who was happily living and cohabiting with the defendant. The late Ozodinobi left Lagos on the understanding with the defendant in the year 2004 and continually visited Lagos regularly to see defendant and for his medical check up at the Eko Hospital Lagos. The defendant with her children has always occupied her husband’s residence at Ilogbo till date and was the person who put in one Mr. Nkem Nkwozoba in one of the 2 flats as a tenant while the other flat was occupied by her and her children when Ozodinobi finally left for Onitsha.
13. Defendant has always been in custody of all documents of title to late Ozodinobi’s landed properties including Deed of Conveyance for 244 Ilogbo Street, Ilogbo, Lagos vacant plot at plot 770 in 920 Road Festac Town Festac extension Lagos now occupied by one Pentecostal church and 37, Isiokwe Road Onitsha until Ikechukwu on the prompting of plaintiff broke through defendant’s door and took some of the above documents hours after the death of late Ozodinobi, an action for which the defendant sued Ikechukwu Obiozor and Miss Ifeanyi Okolo at the Obi in Council Court where they appeared for sometime and conspired to bring this action so as to stay the proceedings at the Obi in Council’s Court. Survey plan of Ozodinobi’s property at l44 Ilogbo Road dated 26/9/84 is hereby pleaded.
22. Paragraph 17 of the Statement of Claim is vehemently denied and in answer thereto defendant states that till date she has all the keys to late Ozodinobi’s apartment at 37, Isiokwe Road Onitsha while plaintiff only come in when the defendant was on customary confinement on the eve of her husbands burial in accordance with Onitsha native law and custom. It was Ikechukwu who broke into the visitor’s room and asked the plaintiff to move therein in the presence of thugs who the plaintiff personally brought to the premises on the said eve of the burial. The plaintiff has up till date seized the said visitors room located outside defendant and her husband’s apartment at the said address. The defendant will at trial apply for a visit to the locus in quo at No. 37 Isiokwe Road, Onitsha.
24. Defendant resisted all moves made by Ikechukwu on the prompting of the plaintiff to sell off defendants husbands property at Ilogbo Lagos and Festac Town Lagos in the guise that Ozodinobi A. Obiozor being a titled man would require elaborate burial ceremony which will cost large some of money and the defendant was finally intimidated into acceding to the sale of one half of the empty plot of land behind the building at 37, Isiokwe road for one million four hundred thousand naira, the deed of which she reluctantly executed in her name while Ikechukwu who received the money has since refused to account to her how he expended the sum of money and withheld the balance of N250,000.00 till this day despite repeated demands by defendant for it.”
Even though it is glaring that the above paragraphs of the statement of defence contain fresh or new facts not contained in the statement of claim, the appellant filed no reply to respond to or deny them. The averment in paragraph 23 of the statement of claim even acknowledge that the respondent was collecting the rents from the properties of the deceased, even though she is contending that the collection was made after the death of Ozodinobi Obiorah. By not denying directly and specifically the pleaded diverse acts of management of the estate of late Ozodinobi Obiozor by the respondent, the appellant clearly admitted the said pleading as correct.
The respondent in her testimony in examination in chief restated the above diverse acts of management specifically pleaded in her statement of defence as shown above. The appellant who was served with a copy of the respondent’s written statement on oath before testifying as PW1 did not lead any evidence disputing any of the facts therein concerning the respondent’s management of the estate of late Ozodinobi Obiozor. When the respondent testified adopting the said written statement on oath as her testimony in examination in chief, the appellant in cross-examining her did not ask any question challenging or contradicting the respondent’s testimony on the said diverse acts of management. The appellant by failing to elicit evidence to deny the said facts and failing to cross-examine the respondent following her evidence of those facts, has accepted the respondent’s evidence as true and correct. See GAJI v. PAYE (supra). Since she is in possession of the estate. She is entitled to protect that possession by legal process against the whole world except the person with a better title like the Administrator of the Estate appointed under the Administration and Succession (Estate of Deceased Persons) Law Cap 4 Vol. 1 1991 Revised Laws of Anambra State. Her present control and management of the estate is without prejudice to the right of any person claiming to be entitled to administer the estate to apply for and obtain a grant of letters to administer the estate. The respondent is equally liable to render account of her management of the estate to persons entitled under Onitsha customary law to benefit from the estate of late Ozodinobi Obiozor or to a person duly appointed administrator of the estate in accordance with the Administration & Succession (Estate of Deceased Persons) Law.
In the light of foregoing I resolve issue No. 4 in favour of the respondent.
On the whole this appeal fails as it lacks merit. It is accordingly dismissed. I affirm the judgment of the High Court of Anambra State in suit No. 0/506/2006 delivered on 6-5-2008 per Agbata J.
I make no order as to costs.
ADZIRA GANA MSHELIA, J.C.A.: I agree.
IGNATIUS IGWE AGUBE, J.C.A.: I agree.
Appearances
Fidelis O. Anyanegbu Esq.For Appellant
AND
Raphael O. Nzekwe Esq.For Respondent
