PRINCEWILL OKECHUKWU CHIDERA IKWU v. MRS. IJEOMA MIRABEL IKWU & ORS (2016)

PRINCEWILL OKECHUKWU CHIDERA IKWU v. MRS. IJEOMA MIRABEL IKWU & ORS

(2016)LCN/8551(CA)

In The Court of Appeal of Nigeria

On Friday, the 29th day of April, 2016

CA/OW/221/2014

RATIO

APPEAL: GROUNDS OF APPEAL; WHERE SHOULD ISSUES FOR DETERMINATION FLOW FROM
The law is trite, that in arguing appeal, the Respondent’s issue for determination has to be founded on the ground(s) of the appeal, as formulated by the appellant, (except where he filed a cross appeal or raised a Respondent’s Notice, allowing him to raise fresh issue or to argue in tandem with his grounds of cross appeal). A Respondent cannot, therefore, raise a strange issue or ague the appeal on an issue not related to the ground(s) of appeal and/or not contemplated in the judgement appealed against. In the recent decision of this Court in the case of Cletus Anyalenkeya vs Engr. Godson Anya & ors: CA/PH/131/2004 delivered on 18/3/2016, we held:
Appeals are considered on issues, distilled from the grounds of appeal and, where an issue for determination does not flow from or relate, properly, to the ground of appeal, the same simply floats, without a base, and must be ignored or struck out. Authorities on this are replete. See Musa vs State (2014) LPELR- 22562 (CA); Ossai vs FRN (2013) 13 WRN 87; Oseni vs Bagulu (2010) ALL FWLR (pt. 511) 813; Shettima vs Goni (2011) 18 NWLR (pt. 1279) 413; UNILORIN vs Olawepo (2012) 52 WRN 42; Igbokwe vs Edom & Ors (2015) LPELR – 25576; (2015) 8 CAR 224.
In the case of Onuegbu & Ors Vs Gov. of Imo State & Ors (2015)8 CAR 224 at 240, (2015) LPELR – 25968 CA, it was held:
the Respondent has no room to formulate issue(s) for determination of appeal, outside the grounds of appeal raised by the Appellant, except he had cross appealed or raised a Respondent’s Notice on the issue. PER ITA GEORGE MBABA, J.C.A.

JUSTICES

RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria

IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria

ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria

Between

PRINCEWILL OKECHUKWU CHIDERA IKWU Appellant(s)

AND

1. MRS. IJEOMA MIRABEL IKWU
2. MR. OSONDU ONYEMAIZU
3. INSPECTOR GABRIEL ODE
4. ASP POLYCARE
5. AREA COMMANDER
6. COMMISSIONER OF POLICE ABIA STATE Respondent(s)

ITA GEORGE MBABA, J.C.A.(Delivering the Leading Judgment):
This is an appeal against the decision of Abia State High Court in Suit No. A/185/2011, delivered on 3/2/2014 by Hon. Justice C.O. Onyeabo, wherein the learned trial Court upheld the preliminary objection raised by the Defendants and struck out the Plaintiff?s Suit for having been commenced in- competently.

Appellant, as plaintiff, had filed the suit claiming, in the writ of summons, as follows:
1) An order directing the 1st defendant to allow the claimant to take custody of the two children of the marriage to wit:
1. Chinedu Daniel Okechukwu Nnanna, born on 22nd February, 2008 and
2. Chukwukadibia Stephen Okechukwu Nnanna,born on 28th September, 2009
2) An order setting aside the decision of 20th July 2011 made by the 2nd Defendant directing the claimant to provide for the welfare of the said children while custody of them remains with the 1st Defendant.
3) A perpetual injunction restraining the Defendants, their agents and others, howsoever, from further arrest and/or detaining the claimant in respect of the dispute between the claimant

and 1st Defendant, regarding the custody and maintenance of the children of the marriage between the claimant and the 1st Defendant in order to coerce or force the claimant to carry out the decision of the 2nd Defendant.
(See page 1 of the Records of Appeal)

The Respondents, on 12/4/13, filed a preliminary objection, to which was attached a written address. The Appellant, in reaction, filed a written reply to oppose the preliminary objection. The motion was heard by the trial Court on 4/11/13, when Counsel for the parties adopted their written addresses. The trial Court, on the same date, 4/11/13, also heard and granted the Application by Defendants to file their statement of defence and deemed the statement of defence earlier filed as duly filed and served on the claimant.

Ruling on the Preliminary objection was made on 3/2/14, when the Lower Court said:
I am however, of the considered view that the claimant has not substantiated the choice of bringing this suit under the High Court Rules. The suit is not based on any civil wrong, breach of duty or personal injuries. It is not also based on allegation of fraud; it does not

seek any declaration; it does not seek the construction of any written instrument and is clearly not a case for judicial review. I do not find therefore that it was properly commenced under the Abia State High Court (Civil Procedure) Rules, 2009. Since (sic) is evident that the claimant and the 1st Respondent had contracted a traditional marriage, the matter of custody of the children of their marriage will be best determined under the law guiding that marriage? The preliminary objection?, is hereby upheld, as I find that the said suit having been incompetently commenced, I lack the jurisdiction to hear same under the said Rules See pages 84-85 of the Records.

That is the decision Appellant appealed against in this appeal, as per Notice of Appeal on pages 86-91 of the Records of Appeal, which disclosed 4 grounds of appeal. Appellant filed his brief arguments on 11/8/14 and distilled a lone issue for the determination of the Appeal:
?Was the learned trial judge right in striking out the suit on the ground that, it ought not be commenced under the High Court Rules?

?The first respondent filed her brief of

argument on 9/9/14 and adopted the sole issue distilled by Appellant for determination of the Appeal. Appellant filed a Reply Brief on 20/10/14 which was deemed duly fild on 24/3/15. Other Respondents filed no brief.

The appeal was heard on 21/3/16, when the parties adopted their briefs and urged us, accordingly.

Arguing the Appeal, Counsel for the Appellant, Ukpai O.Ukairo Esq. answered the issue posed in the negative. He submitted that it is settled law that it is the claim endorsed on an originating process that determines the jurisdiction of the Court. He relied on Emeka vs Okadigbo (2012) 18 NWLR (pt. 1331) 55; He argued that where a party contends that a court lacks jurisdiction to adjudicate on a claim, it is the statement of claim that is looked at to determin the potency of the objection (NURTW vs RTEAN (2012) 10 NWLR (pt 1307) 170).

Counsel referred us to the claims of the Appellant in this case (at the Lower Court) and said that the High Court of the State, except as limited by Section 251 of the 1999 Constitution (as amended), is a Court of unlimited jurisdiction. He relied on Section 6 of the 1999 Constitution and Section II (1) of

the High Court Law of Abia State of Nigeria. 2005, Vol. 4, and on the case of ANSA VS R.T.P.C.N (2008) 7 NWLR (pt. 1086) 421. He added that Section II (4) of the High Court Law (supra) provides that the jurisdiction vested in the High Court shall include the?.administration or control of property or persons and power to appoint or control guardian of infants and their estates

Counsel said the learned trial court had rejected the contention that the claim ought to be instituted under the Matrimonial Causes Act/Rules, because it was never pleaded by the Claimant that he and the 1st Defendant were married under the Marriage Act. He said that that ought to have been the end of the application, as that was the basis of the preliminary objection. But that the learned trial court, suo motu, proceeded to hold that the subsisting marriage between the Appellant and 1st Respondent was the traditional marriage and accordingly, that Appellant ought to have filed a petition under the customary law.

Counsel argued that even then, the High Court has jurisdiction to administer Customary Law. He cited Section 20 of the High Court

Law of Abia State. Thus, he said, the fact that the Lower Court held that parties were in a subsisting traditional marriage did not deprive the Lower Court of requisite jurisdiction, to adjudicate on the matter. He submitted that the unlimited jurisdiction of the High Court is wide enough to encompass issues governed by customary law. He relied on the case of Olubodun vs Lawal (2008) 17 NWLR (pt. 1115) 1 and asserted that the claim (relief) one, endorsed on the statement of claim, was in repect of custody of children of a marriage, nay customary marriage; that Appellant sought the custody of the children, which the 1st Respondent had denied him; that since the Court had held that the marriage was under customary law, and that the matter of the custody of the children will best be determined under the law guiding that marriage?, the Court ought to have allowed, a hearing of the matter, to determine if the denial of custody was a civil wrong under customary law. That this the Court failed to do.

Counsel urged us to resolve the issue for Appellant and allow the appeal.

Responding, the 1st Respondent?s Counsel, Eluwa

Nwachinemerem Esq, answer the poser in the affirmative and submitted that there must exist a matter in actual controversy between parties to a suit, for the Court to be called upon to determine; that once there is no such live issue between the parties, a count will lack the jurisdiction to entertain the matter. Thus, he said there must be a cause of action between the parties or dispute in respect of which a Court of law is entitled to invoke its judicial power to determine. He relied on AG Federation vs Abubakar (2007) 10 NWLR (pt 1041) 121 at 122.

Counsel said a cause of action accrues to a party from the time or date a duty is breached or an act occurs, which warrants the party injured thereby to take action in law to assert or protect his violated legal right. He relied on Owie vs Ighiwi (2005) 5 NWLR (pt 917) 184. He said that in determining the existence or otherwise of a cause of action the court looks at the writ of summons or statement of claim, not the statement of defence. He relied on Dada vs Dina (2008) 6 NWLR (pt. 1084) 549, and said that in present case Appellant has not substantiated the choice of bringing this suit under the High Court

Rules; that from the claim as endorsed on the statement of claim, there was no disclosure of the cause of action, since the suit is not based on:
i. Allegation of fraud,
ii. Does not seek any declaration
iii. Does not seek the construction of any written instrument and is clearly not a case for judicial review and
iv. Is not based on any civil wrong, breach of duty or personal injuries.

Thus, he said, the commencement of the suit under the Abia state High Court (Civil procedure) Rules 2009, was not proper, because of the non disclosure of cause of action. He added that the issue was not about whether the High Court does not have unlimited jurisdiction, but about the mode of commencement of the action- which is improper.

He argued that the main claim of Appellant was relief one, while the 3rd relief (alleged breach of fundamental right) was ancillary relief and since the principal relief was incompetent, the ancillary relief had nothing to found on. He relied on Clelus Madu vs Neboh (2002) 2 CHR 67; and said that fundamental rights claim cannot be sustained as a suit, where it is only an ancillary claim in the Suit. He urged us to

resolve the issue against the Appellant and to dismiss the Appeal.

In Appellant’s Reply brief, he said that the whole arguments of the 1st Respondent, about the case not disclosing a cause of action, slidded away from the reasons the trial court based its decision, which was that, Appellant was wrong to have brought the suit under the High Court, (Civil Procedure) Rules, 2009, especially, the marriage having been one under customary law; that the High Court ( Civil Procedure) Rules 2009, has no accommodation for the suit, which should rather be founded under the customary law, and heard by the Customary Court.
RESOLUTION OF THE ISSUE
Appellant’s main contention in this appeal is that, given the unlimited jurisdiction of the High Court of the State (as opposed to the Federal High Court, under Section 251 of the 1999 Constitution, as amended), the trial Court was wrong to decline jurisdiction on the allegation that Appellant’s marriage to 1st Respondent was under traditional law and governed by customary law. He argued that, even if the marriage was one under traditional law, that the High Court, under Section 20 of the High Court

Law of Abia State, has the jurisdiction to administer customary law. He admitted that the parties were in a subsisting traditional marriage, but added that that did not deprive the Lower Court of requisite jurisdiction in the case; that the unlimited jurisdiction of the High Court is enough to encompass issues governed by customary law. The 1st Respondent’s reply did not appear to challenge the above arguments of Appellant, but strayed to issue of non disclosure of cause of action, which was neither raised in the grounds of appeal nor in the judgement.

The law is trite, that in arguing appeal, the Respondent’s issue for determination has to be founded on the ground(s) of the appeal, as formulated by the appellant, (except where he filed a cross appeal or raised a Respondent’s Notice, allowing him to raise fresh issue or to argue in tandem with his grounds of cross appeal). A Respondent cannot, therefore, raise a strange issue or ague the appeal on an issue not related to the ground(s) of appeal and/or not contemplated in the judgement appealed against. In the recent decision of this Court in the case of Cletus Anyalenkeya vs Engr.

Godson Anya & ors: CA/PH/131/2004 delivered on 18/3/2016, we held:
Appeals are considered on issues, distilled from the grounds of appeal and, where an issue for determination does not flow from or relate, properly, to the ground of appeal, the same simply floats, without a base, and must be ignored or struck out. Authorities on this are replete. See Musa vs State (2014) LPELR- 22562 (CA); Ossai vs FRN (2013) 13 WRN 87; Oseni vs Bagulu (2010) ALL FWLR (pt. 511) 813; Shettima vs Goni (2011) 18 NWLR (pt. 1279) 413; UNILORIN vs Olawepo (2012) 52 WRN 42; Igbokwe vs Edom & Ors (2015) LPELR ? 25576; (2015) 8 CAR 224.
In the case of Onuegbu & Ors Vs Gov. of Imo State & Ors (2015)8 CAR 224 at 240, (2015) LPELR ? 25968 CA, it was held:
the Respondent has no room to formulate issue(s) for determination of appeal, outside the grounds of appeal raised by the Appellant, except he had cross appealed or raised a Respondent’s Notice on the issue.

Was the trial Court right to strike out Appellant’s suit, saying it was not properly commenced under the High Court (Civil procedure) Rules, and

because the marriage between Appellant and the 1st Respondent was traditional marriage, governed under customary law?

?The application of the Respondents, at the Lower Court, was for an order striking out suit No.A/185/2011, for lack of jurisdiction over the case. They had argued that the procedure which Appellant adopted to bring the suit was wrong; that the matter involved custody of children, and so was unique and should have been brought by the procedure prescribed by law, which is by way of petition under the Matrimonial Causes Act and Rules, which regulate matters of dissolution of marriage, judicial separation and issues of custody of children, under the Marriage Act. In his reply address, urging the trial court to dismiss the preliminary objection, Appellant?s Counsel had said that there was nothing in the statement of claim to suggest that the marriage between the Appellant and the 1st Respondent was under the Marriage Act, to warrant compliance with the Matrimonial Causes Act and Rules. He had argued, strongly, that the marriage was not one under the Marriage Act; that proceedings under the Matrimonial Causes Act and Rule can only commence,

where the marriage in question is one under the Marriage Act, Cap M7 Laws of Federation of Nigeria, 2004; that, there is a world of difference between a Church marriage and a Statutory Marriage. He relied on NWANGWA vs UBANI (1997) 10 NWLR (pt. 526) 559. He added that Appellant had the option to commence the suit by the procedure he adopted, that is, bringing the suit under Order 5 Rule 5 of Abia State High Court (Civil Procedure) Rules, 2009 and under the inherit jurisdiction of the trial Court.

In his ruling, the trial Court observed that the preliminary objection arose from the Appellant?s pleading of the type of his marriage to the 1st Respondent, in paragraph 2 of the statement of claim, filed on 6/9/2011, which stated:
?The 1st Defendant is, by virtue of traditional marriage and church wedding of 16th December 2006 and 7th April 2007, respectively, wife to the claimant. The 1st Defendant, on her own accord abandoned the matrimonial home at 4. Ahukanna Street, Aba, where she had until 3rd November 2010, lived with the Claimant.

The trial Court then said:
It was also submitted that there is no pleading that

the said marriage was contracted under the Marriage Act . . . I am however, of the view that the learned Counsel for the claimant seemed to have missed the point raised by the learned Counsel for the 1st Defendant. With respect, it is not whether or not the issue of the custody of a child can be determined, independently, that is, being questioned by the 1st Defendant; it is instead under which Law or Rules of Court same can be heard, or the action commenced. In paragraph 2 of the written reply of the claimant of the preliminary objection. . . it was stated as follows: ?It is worthy of note that the substantive claim before the Court is brought under Order 5 Rule 5 of the Abia state High Court (Civil Procedure) Rules, 2009 and under the inherent jurisdiction of the Court?
I have refereed to Order 5 Rule 5 of the said Rules of this Court and this provision is an interlocutory Application and thereby inapplicable herein. See pages 81 to 83 of the Records.

The trial Court went on to say:
It is clear, therefore, that while there is subsisting Customary Law Marriage between the claimant and the 1st Defendant, there is no

such clear averment of a marriage between them under the Marriage Act, as not all church weddings, automatically translate to marriages under the Marriage Act. . . I am however, of the considered view, that the Claimant has not substantiated the choice of brining this suit under the High Court Rules . . . (Page 84 of the Records)

Though Appellant, clearly, set out the issue for the determination of the appeal whether the trial Court was right to strike out the suit on the ground that it ought not to be commenced under the High Court Rules Appellant’s Counsel, appeared to have greatly misconstrued the Issue and the import of the trial Court’s decision, as Appellant’s arguments, rather, centred on the unlimited jurisdiction of the trial Court to hear cases brought before it, including even matters touching on Customary law!

Of course, the unlimited jurisdiction of the High Court (though further circumscribed by the 1999 Constitution as amended Sections 251 and 254 C, etc.), is not the issue in this appeal, but whether the suit was properly originated in that Court, by means of Order 5 Rule 5 of the

Rules of Court, considering the substance of the suit, taken out by the Appellant.

Order 5 Rule 5 of the High Court (Civil Procedure) Rules of Abia State, 2009 is about interlocutory applications. Rule 1 of that Order says:
1) All interlocutory applications shall come up at the pre-trial sessions.
2) Any interlocutory application filed after the pre-trial session shall be with the leave of Court, except where the application is on jurisdiction or is extremely urgent.
Rule 2 says such applications are to be supported by affidavit, while Rules 3 and 4 require the application to be supported by written address. Rule 5 says:
Where the Applicant intends to rely on points of law, he shall within seven (7) days of being served with the Respondent’s written address file his reply on such points of Law. Where a counter affidavit is served on the Applicant, he may file a further affidavit with his said reply.

I am at a loss, trying to locate Appellant?s claim, in the substantiative suit, within Order 5, Rule 5 of Abia State High Court (Civil Procedure) Rules 2009, going by Appellant?s

Counsel?s claim in paragraph 2 of his Reply Address. He said:
?It is worthy of note that the substantive claim before the Court is brought under Order 5, Rule 5, Abia State High Court (Civil Procedure) Rules, 2009 and under the inherent jurisdiction of the Court?
See page 67 of the Records.

The writ of Summons was filed on 6/9/2011 by the Appellant, seeking the reliefs, which I had earlier reproduced in this judgment:
1) ?An Order directing the first Defendant to allow the Claimant to take custody of the two children of the marriage to
(a) Chinedu Daniel Okechukwu Nnanna born on 22nd February 2008
(b) Chukwuadibia Stephen Okechukwu Nnanna born on 28th September 2009
2) An Order setting aside the decision of 20th July 2011 made by the 2nd Defendant directing the claimant to provide for the welfare of the said Children, while custody of them remains with the 1st Defendant
3) A perpetual Injunction restraining the Defendants . . . from further arrest and or detaining the claimant in respect of the dispute between the Claimant and 1st Defendant regarding the custody and maintenance of the children of

the marriage between the claimant and the 1st Defendant in order to coerce or force the claimant to carry out the decision of the 2nd Defendant.? (Pages 1 and 2 of the Record).

Ordinarily, one would have taken the above suit, originated by writ of Summons, as bought pursuant to the requisite High Court Law of Abia State and by virtue of the Constitutional provisions, but for the confession of the Appellant?s Counsel, that the case was predicated on Order 5 Rule 5 of the High Court (Civil Procedure) Rules, 2009.

The Respondent?s initial concern was that the matter should have been originated as a Matrimonial Causes action under the Matrimonial Causes Act/Rules, since it touched on custody of children. But Appellant was quick to assert that the marriage was not one under the Marriage Act, but under customary law, as the traditional marriage of the two subsisted, despite the church blessing of the marriage. It was, therefore, the Appellant?s Counsel?s address, coupled with paragraph 2 of statement of claim of the Appellant, that provided the evidence for the trial Court to hold that the suit was not properly commenced under

Order 5 Rule 5 of the High Court (Civil Procedure) Rules 2009. I cannot fault that sound findings and ruling of the trial Court.

The whole claim of the Appellant, in the writ of summons tends to suggest the existence of another (substantive) suit, from which the Plaintiff?s claim proceeded, as interlocutory application. One cannot envisage a situation of seeking Court?s direction of the 1st Defendant to allow the claimant to take custody of the children of any marriage, in the absence of a pending or concluded divorce suit, and there cannot be an order setting aside the decision of the 2nd Defendant (Mr Osondu Onyemaizu, who is not a Court) made on 20/7/11 directing Appellant to provide for the welfare of the children of the marriage while they remained with the 1st Defendant, without establishing the existence of a valid order of Court, giving custody of the children to the 1st Defendant and or payment of money for the welfare of the children.

?Also, it is awkward to ask for injunction to restrain Defendants from arresting and or detaining the Appellant on account of the custody and maintenance of the children of the marriage, when there

is no case, alleging breach of Appellant?s fundamental rights, and establishing the infraction of his said rights, or seeking a declaration that that was wrongful.

While, the 3rd relief sought by the Appellant at the Lower Court, is usually initiated by way of fundamental rights action, pursuant to Fundamental Rights (Enforcement Procedure) Rules 2009, the 1st and 2nd Reliefs are usually, properly, made in a divorce suit, whereof the petitioner seeks the dissolution of his marriage, either under the Matrimonial Causes Act/Rules (if the marriage was contracted under the Marriage Act), or by petition to the Customary Court, if the marriage was under Customary law.

Appellant’s suit, therefore, appears to be a mixture of an off shoot of a divorce case and a fundamental rights action, but, strangely, commenced under Order 5 Rule 5 of the High Court (Civil Procedure) Rules 2009 of Abia State, (according to Appellant’s Counsel), which has nothing to do with the claims or the suit. I agree with the learned trial Court, that the suit was improperly commenced, under Order 5 Rule 5 of the High Court Civil Procedure) Rules, 2009, and the trial

Court lacked the vires to entertain it.

I resolve the issue against the Appellant and dismiss the appeal.

Parties shall bear their respective costs.

RAPHAEL CHIKWE AGBO, J.C.A.:?I had the privilege of reading in advance the lead judgment written by my learned brother Ita G. Mbaba, JCA and I agree completely with both the reasoning and conclusions. I have nothing useful to add.

IGNATIUS IGWE AGUBE, J.C.A.:?I had the privilege of reading in advance, the Lead judgment of my learned brother I. G. Mbaba, JCA and am in total agreement with his reasoning and conclusions that the Appeal lacks merit and is accordingly dismissed.

I am therefore, of the same view with the learned trial Court, that the suit was improperly commenced, under Order 5 of the High Court (Civil Procedure) Rules 2009 and the trial Court lacked the vires to entertain it.

I also resolve the issue against the Appellant and accordingly dismiss the Appeal. I abide by the order made on costs.

Appearances

Ukpai O. Ukairo, Esq. with him, E. M. Ukweni, Esq.For Appellant

AND

Eluwa Nwachinameren, Esq.For Respondent