STEPHEN UGOCHUKWU & ORS v. HELEN UGOCHUKWU
(2019)LCN/12737(CA)
In The Court of Appeal of Nigeria
On Friday, the 22nd day of February, 2019
CA/PH/281/2005
RATIO
COURT AND PROCEDURE: WHERE THERE IS MISCARRIAGE OF JUSTICE
“Since these findings were not perverse, and there is no substantial error such as miscarriage of justice, or violation of some known principle of law or procedure, I have no reason to disturb the findings of facts made by the learned trial Judge. See EZEONWU VS. ONYECHI (1996) 3 NWLR (PT. 438) 499 (SC); SHITTU VS. EGBEYEMI (1996) 6 NWLR (PT. 457) 560 (SC) and BABUGA VS. STATE (1996) 7 NWLR (PT. 460) 279 (SC).” PER IBRAHIM ALI ANDENYANGTSO, J.C.A.
JUSTICES
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
IBRAHIM ALI ANDENYANGTSO Justice of The Court of Appeal of Nigeria
Between
1. STEPHEN UGOCHUKWU
2. JOHN UGOCHUKWU
3. PETER UGOCHUKWU
4. PIUS UGOCHUKWU
5. EMMANUEL UGOCHUKWU – Appellant(s)
AND
HELEN UGOCHUKWU – Respondent(s)
IBRAHIM ALI ANDENYANGTSO, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the judgment of the High Court of Imo State of Nigeria, presided over by the Hon. Justice G. Ifunanya Udom-Azagu, J. sitting at the Aboh-Mbaise Judicial Division, delivered on the 18th May, 2004 against the Appellants and in favour of the Respondent.
Peeved by the said judgment, the Appellants filed a 4 ground Notice of Appeal on the 21st May, 2004, which with the leave of this Court, was amended on 11th August, 2004 (page 85 of the Record).
THE FACTS OF THE CASE
With the leave of the trial Court vide an Ex-parte motion granted on 13/1/2003, the Applicant vide a motion on notice, applied to the trial Court to enforce her fundamental rights under Sections 34(1) (a); 35 and 46 (1) & (3) of the Constitution of the Federal Republic of Nigeria, 1999, claiming as follows:-
(a) A DECLARATION of the honourable Court that Respondents’ continued barring of the Applicant, a widow, from entering her marital place of abode that is the two rooms she cohabited with her husband before his death is inhuman and degrading treatment and amounts to an infraction of the Applicant’s fundamental right to dignity of her person.
(b) A DECLARATION of the honourable Court that the Respondents’ continued refusal to allow the Applicant enjoy the privacy of her marital place of abode that is the two rooms which the Applicant, a widow, cohabited with her husband before his death is an infraction of the Applicant?s fundamental right to privacy and family life.
(c) AN ORDER restraining the Respondents by themselves, their agents, workers or servants from continuing to bar the Applicant from entering her marital place of abode that is the two rooms she cohabited with her husband before his death.
(d) AN ORDER restraining the Respondents by themselves, their agents, workers or servants from continuing to refuse the Applicant the enjoyment of the privacy of her marital place of abode that is the two rooms Applicant cohabited with her husband while he was alive.
(e) AN ORDER that the Respondents remove the padlock by which they double locked the Applicant’s marital place of abode aforesaid.
2. ANY other order or orders as the Court may deem fit to make in the circumstance.?
The Respondents joined issues with the Applicant vide counter affidavit and written address in opposition and at the end of the trial, judgment was given in favour of the Applicant, hence this appeal. Henceforth I shall refer to the parties as the Appellants and the Respondent respectively. The four grounds of appeal, shorn of their particulars are as follows:-
GROUND 1
The learned trial Judge erred in law by granting the reliefs sought when the Court lacked the jurisdiction to grant those reliefs.
GROUND 2
The learned (sic) trial Court erred in law by holding that it found as a fact that the Applicant was married to the late brother of the Respondents/Appellants where there was no oral testimony to resolve the conflict in affidavit and no documentary evidence to also resolve same.
GROUND 3
The learned trial Court erred in law by holding that the Appellants locked up the two rooms of the Applicant/Respondent relying on unverified facts in the affidavit which were controverted by the Appellants.
GROUND 4
The learned trial Judge erred in law when she found as a fact that the Respondent was married to the late Michael Ugochukwu.?
The relief sought is:-
‘To allow the appeal, set aside the Ruling of the trial High Court and strike out the application for enforcement of the Applicant/Respondent?s Fundamental Rights at the High Court of the State sitting at Aboh Mbaise.’
In compliance with the Rules of this Court, parties filed and exchanged their Briefs of argument. The Appellants filed their amended brief on 21/3/2014 while the Respondent filed hers on 1/2/2018, both briefs amended with the leave of Court.
On 27/11/18 when this appeal was heard, the Appellants? Counsel was absent. N. C. Dike Esq., appeared for the Respondent and adopted the Respondent?s brief, settled by Chief J. E. Onyenucheya Esqr., while the Appellants? brief was taken as having been argued under Order 19 Rule 9 (4) of the Rules of Court, 2016. In the Appellants? brief we were urged to allow the appeal and set aside the judgment of the lower Court. The Respondent?s Counsel urged us to dismiss the appeal and affirm the decision of the lower Court.
Now from the four grounds of appeal, the Appellants distilled two issues for determination thus:-
1) Whether the trial Court had jurisdiction to entertain the application in view of non-fulfillment of conditions precedent for the exercise of jurisdiction. (Ground 1)?
2) Whether the Applicant proved that she was married to late Michael Ugochukwu by native law and custom and that she was wrongly locked out of the rooms of late Michael Ugochukwu (Grounds 2, 3 and 4).?
The Respondent also donated two issues thus:-
(1) Whether the Court had the jurisdiction to entertain the application on grounds of non-compliance with the rule of procedure.
(2) Whether the respondent did not prove that she was married to late Michael Oguchukwu under native law and custom and that she was wrongly locked out of the rooms of late Michael Ugochukwu.?
The two issues formulated by both sides are the same. So I shall adopt the issues of the Appellants in deciding this case.
It is to be observed that Ground 4 of the appeal is a repetition of Ground 2 and is hereby discountenanced and struck out. Its inclusion in issue 2 is superfluous. Consequently issue 2 is distilled from Grounds 2 and 3 only.
ISSUE 1
Whether the trial Court had jurisdiction to entertain the application in view of non-compliance of conditions precedent for the exercise of jurisdiction(Ground 1)
The appellants’ counsel answered this issue in the negative and contended that the trial Court was wrong in entertaining the case and decided same on the merit, when the Respondent failed to meet the conditions precedent set out in Order 2 Rule 4 of the Fundamental Rights (Enforcement Procedure) Rules 1979, which are to be strictly construed. Learned counsel referred to pages 25-30 of the Record and relied on ODOFIN VS. IGP (2001) 1 CHR 440 @ 447 H-I; SAUDE V. ABDULLAHI (1989) 4 NWLR (PT. 116) 389 @ 422 A-B; MADUKOLU V. NKEMDILIM (1962) 2 SCNLR 341 and OGWUCHE V. MBA (1994) 4 NWLR (PT. 336) 75 @ 85 para H.
The learned Appellants’ Counsel reproduced a portion of the judgment of the trial Court at page 55 lines 25-30 and page 56 lines 1-3 of the Record and submitted that the trial Court misapplied the principles of law in the cases of ODOFIN V. IGP (Supra) and EZEGWU V. FATB LTD., (citation not supplied) while dealing with the issue of jurisdiction which is the most fundamental aspect of adjudication. He cited M/V BACO LIVER 3 VS. ADENIJI (1993) 2 NWLR (PT. 274) 195 @ 202 B-C to the effect that once a trial Court lacks jurisdiction to try a case, it cannot hide under the cloak of doing substantial justice to try the case and determine same on the merit. He also submitted that it is improper for a Court to exercise jurisdiction in respect of an action which is improperly constituted, as proper constitution of a case is a condition precedent to the exercise of jurisdiction. He relied on OYEYIPO VS. OYINLOYE (1987) 1 NWLR (PT. 50) 356 @ 370; OGUNSANYA V. DADA (1990) 6 NWLR (PT. 156) 374; ODOFIN V. AGU (1992) 3 NWLR (PT. 229) 350 and OSAFILE V. ODI (NO. 1) (1990) 3 NWLR (PT. 137) 230.
Learned counsel finally on this issue referred to Order 1 Rule 2 (3) of the Fundamental Rights (Enforcement Procedure) Rules 1979 and the cases of RE APOLLOS UDO 4 NWLR (PT. 63) 120 @ 126; NWEZE V. COP & ORS. (2001) 1 CHR 445; OYAWOLE V. SHEHU (1995) NWLR (PT. 414) 484 and ‘GUIDE TO FUNDAMENTAL RIGHTS LITIGATION’ by D. Uzo Esq. 104 paras1-3, and submitted that issues of condition precedent cannot be waived as the Fundamental Rights (Enforcement Procedure) Rules 1979 are strictly construed and that it is clear from the above authorities that the lower Court acted without jurisdiction in this matter.
The learned Respondent’s Counsel on his part submitted that the lower Court had the jurisdiction to entertain and determine the application on its merits. He contended that Order 2 Rule 4 of the Fundamental Rights (Enforcement Procedure) Rules, 1979 is capable of being waived like any other rule of procedure and was indeed waived in this application.
Learned Counsel quoted the provisions of Section 42 (3) of the Constitution of the Federal Republic of Nigeria 1979 which are similar to the provisions of Section 46 (3) of the Constitution of Federal Republic of Nigeria 1999 and submitted that what the Chief Justice of Nigeria was enjoined to make, and which he did indeed make, was to make rules with respect to the practice and procedure for the purpose of enforcing fundamental rights, which is an aid to the Court and not a master which should enslave the Court. He cited STEEL BELL (NIG) LTD VS. GOVERNMENT OF CROSS RIVER STATE (1996) 3 NWLR (pt. 438) (incomplete citation) and BROAD BANK VS. A.S. OLAYIWOLA & SONS LTD. (2005) 1 KLR 257 at 261 and submitted that non-compliance with the rules of Court is curable if not intended to overreach, as the Rules are made to meet the ends of justice and therefore not immutable, and cannot be constructed in absolute terms.
It was the contention of Learned Counsel that the Appellants were notified of the pendency of the Suit and they entered their defence by swearing to counter affidavit and written address, and so Order 2 Rule 4 has been complied with.
He submitted that the Appellants appeared in Court without any protest and so had waived their right under the law. He urged us to so hold in order to avoid technical justice.
In respect to the non filing of affidavit of service at the lower Court which robed it of its jurisdiction, learned Counsel submitted that this was a procedural flaw which is curable and did not touch the substantive jurisdiction of the Court, relying onEZOMO VS. OYAKHIRE (1985) 1 NWLR (pt. 2) 195 B, and NWABUEZE VS. OKOYE (1988) 4 NWLR (pt. 91) 664.
Citing:-
(1) SKEN CONSULT NIG. LTD VS. UKEY (1981) 1 SC 6
(2) ASSOCIATED DISCOUNT LTD. VS. AMALGAMATED TRUSTEES LTD. (2006) 5 KLR (pt. 217 -219) 1735 at 1738 – 1739
(3) OBISI VS. CHIEF OF NAVAL STAFF (2004) 5 KLR (pt. 178) 1291 at 1294 and 1717.
and lots more, learned Counsel submitted that since the Appellants have participated in the proceedings they had waived their right and cannot complain at this stage.
It is further submitted that the Respondent complied with Order 1 Rule 2 (4) of the Rules, and that the affidavits are not to be filed separately from the motion as they support or verify the facts contained in the statement. He argued that by filing counter affidavit and coming to the Court, there is no more basis for complain of non-compliance with the Rules since there is no miscarriage of justice. Finally on issue 1, it was submitted that the Court should follow substantial justice doctrine and not technical justice, relying on NISHIZAWA LTD. VS. JETHWANI (1984) 12 SC 234 and urged us to dismiss the appeal on this issue.
ISSUE 2
Whether the Applicant proved that she was married to late Michael Ugochukwu by native law and custom and that she was wrongly locked out of the rooms of late Michael Ugochukwu (Grounds 2, 3, and 4).”
The Appellants answered this issue in the negative, contending that the Respondent failed to prove marriage between her and late Michael Ugochukwu. They contended that cohabitation is not marriage.
They also contended that since they had countered in their deposition page 24 lines 1-6 of the Record, the Respondent ought to depose to further affidavit which she failed, thereby admitting their affidavit evidence, relying on NWANGANGA VS. MIL. GOV. OF IMO STATE (1987) 3 NWLR (pt. 59) 185 at 193 D. Learned Counsel further submitted that it was not right for the trial judge to say ‘I believe’ without evidence to support the belief, relying on NAB LTD. VS. SHUABU (1999) 40 NLR (pt. 186) 450 at 467 C. He also submitted that as far as the Respondent did not prove customary marriage between her and late Michael Ugochukwu, there was nothing for the lower Court to believe. He referred to page 24 lines 17 – 21 of the Record and submitted that the Respondent, having occupied the room for some time and packed out, no longer has any right to disturb them in the Court, relying on NWANGANGA VS. MIL. GOV OF IMO STATE (supra). Again it was contended that there were material contradictions in the affidavit evidence which ought to be resolved by oral evidence relying onMOGAJI VS. CADBURY (1985) 2 NWLR (pt. 7) 393 at 403 and ONUBOGU VS. STATE (1974) 4 ECSLR 403.
On the whole, Appellants’ learned counsel submitted that there was no evidence of marriage between the Respondent and Michael Uguchukwu before the lower Court, and urged us to so hold and allow the appeal and set aside the judgment of the lower Court.
The Respondent’s learned counsel on the other hand, submitted that the Respondent proved the marriage between her and late Michael Ugochukwu at the lower Court by her affidavit evidence. He looked up the meaning of the words ‘used to’ as contained in paragraph 13 of the 1st Appellant’s affidavit and submitted that the 1st Appellant had admitted the marriage between the Respondent and late Michael Ugochukwu and therefore the Respondent had proved her marriage to Michael Ugochukwu, relying on the cases of ARCHIBONG VS. ITA (2004) 1 KR 73 at 77; UBA PLC VS. JARGABA (2007) 7 MJSC 113 at 118 R. 8; and NAS. LTD. VS. UBA PLC (2005) 7 KLR (pt. 200 – 201) 2145 at 2165 etc.
On the second arm of this issue i.e. locking up the rooms of the late Michael Ugochukwu, it is submitted that there was ample evidence to that effect, referring to page 12 lines 21 – 22 and page 19 lines 23 – 30 of the Record.
In conclusion, learned Counsel submitted that the Respondent proved her case and that the trial Court correctly decided same and so we should not disturb its decision.
He then urged us to dismiss the appeal.
RESOLUTION OF THE ISSUES
ISSUE 1 (Ground 1)
Whether the trial Court had jurisdiction to entertain the application in view of non-fulfillment of conditions precedent for the exercise of jurisdiction
I have given careful consideration to the submissions of Counsel in respect of this issue and the authorities cited in support thereof. The attack by the Appellants in ground 1 from which issue 1 is distilled is based on non filing of affidavit in verification of service setting forth all those served, the date of service, time and place of service.
The resolution of this issue entails a closer look into the proceedings at the lower Court.
The Motion Ex-parte which originated this proceeding was heard on 13th January, 2003. At page 8 of the Record of Appeal, after hearing the ex-parte motion, the lower Court ruled as follows:-
‘Order as prayed. The Applicant is hereby granted leave to enforce her fundamental rights as enshrined in Section 34 (1) (a), 37 and 46 (1) and (3) of the 1999 Constitution. The Order Ex-parte together with the motion on notice shall be served on the Respondents forthwith.
It is hereby ordered that the return date be 23/1/2003.’
Page 14 of the Record of Appeal contains the proceedings of 23/1/2003. The following is the excerpt of the proceedings of that day:-
Plaintiff/Applicant in Court
1st Defendant/Respondent, others are absent.
I. M. Fadurumba Esq., for 1st Respondent, says served yesterday. Wants time to react.
2nd to 5th Respondents not served.
Court
Case adjourned to 17th February, 2003 for report of service and motion on notice.?
The proceeding of 17th February, 2003 is contained at page 15 of the Record, and the following is the Court notes for that day:-
Parties in Court. Served.
For Motion on Notice.
J. E. Onyenucheya Esq., for Applicant. Letter from Counsel for Respondents ? ill and asks for adjournment.
Court:
Case adjourned to 28th April 2003 for Motion on Notice.?
The affidavit in support of the motion served on the Appellants generated a counter affidavit (pages 16 – 18 of the Record) deposed to by the 1st Appellant, at paragraph 18 of which he stated thus:-
18. That I make this affidavit with the consent and authority of the other Respondents.?
The 1st Appellant’s counter affidavit generated further affidavit which also elicited a further counter affidavit (pages 19 – 21 and 23 – 25 of the Record respectively). In paragraph 3 of the further counter affidavit the 1st Appellant averred as follows: –
3. That I swear to this further counter affidavit with the authority and consent of the 2nd, 3rd, 4th and 5th Respondents.?
Thus, the case commenced and ended with the 1st Appellant doing everything with the consent and authority of the 2nd – 5th Appellants.
It is clear from the above that the Appellants were served with all the processes of the lower Court and actively participated in the proceedings. Therefore I fail to see their grouse in respect of non filing of affidavit of service. They were duly served. They appeared before the lower Court. They filed their counter and further counter affidavits in response to the affidavit and further affidavit of the Respondent at the lower Court. The fact that there was no filing of affidavit of service did not occasion any miscarriage of justice. I so hold.
I consequently answer this issue in the affirmative that the trial Court had jurisdiction to entertain the application and resolve same against the Appellants and in favour of the Respondent.
ISSUE 2 (GROUNDS 2 & 3)
Whether the Applicant proved that she was married to late Michael Ugochukwu by native law and custom and that she was wrongly locked out of the rooms of late Michael Ugochukwu (Grounds 2, 3, &4)
I have carefully considered the affidavit evidence of the parties and submissions of Counsel on this issue, which was an attack on the marriage of the Respondent to the late Michael Ugochukwu, who was a brother of full blood to the Appellants. While the Respondent averred in paragraphs 1 and 2 of her founding affidavit at page 12 of the record that she was married to the late Michael Ugochukwu in his life time, the Appellants refuted this claim in paragraphs 2 and 5 of the counter and the further counter affidavits at pages 16 and 24 of the Record respectively.
However, at paragraphs 11 and 16 of the counter affidavit at pages 17 and 18 of the Record, the Appellants averred as follows:-
’11. That the said one room downstairs which the late Michael Ugochukwu used to occupy is now being occupied by the Applicant.’
’16. That the one room allotted to the late Michael Ugochukwu is open and the Applicant still makes use of it.’
‘These averments have defeated the claim of the Appellants that the Respondent was never married to their late brother Michael Ugochukwu. If she was not married to late Michael Ugochukwu, what would she be doing in that house after the burial of the father of the Appellants and after the death of Michael’
The trial Judge has found the evidence of the Respondent more credible and worthy of belief at page 54 lines 7 – 10 of the Record than that of the Appellants, that the Respondent was married to the late Michael Ugochukwu. Since these findings were not perverse, and there is no substantial error such as miscarriage of justice, or violation of some known principle of law or procedure, I have no reason to disturb the findings of facts made by the learned trial Judge. See EZEONWU VS. ONYECHI (1996) 3 NWLR (PT. 438) 499 (SC); SHITTU VS. EGBEYEMI (1996) 6 NWLR (PT. 457) 560 (SC) and BABUGA VS. STATE (1996) 7 NWLR (PT. 460) 279 (SC).
Without much ado, I answer this issue in the affirmative and resolve same against the Appellants and in favour of the Respondent.
On the whole, this appeal lacks merit and is hereby dismissed. The judgment of the lower Court is hereby affirmed by me. Cost of N30, 000.00 only is awarded to the Respondent to be paid by the Appellants.
RITA NOSAKHARE PEMU, J.C.A.: I had read before now, the lead judgment just delivered by my Brother IBRAHIM ALI ANDENYANGTSO JCA.
I agree with his reasoning and conclusion.
I also dismiss the appeal as lacking in merit. The judgment of the Court below is affirmed by me.
I abide by the consequential order made as to costs.
ITA GEORGE MBABA, J.C.A.: I agree with the reasoning and conclusion of my learned brother, ANDENYANGTSO JCA, in the lead judgment, that the appeal lacks merit and should be dismissed.
I do not know why the Respondent did not ask for damages against the Appellants at the Court below, for the unlawful violation of the Respondent’s right to her matrimonial home/property. This would have been a good case to compensate her for the injuries/scourge inflicted on her by the Appellants, who obviously harassed, intimidated and oppressed the widow of their late brother.
I abide by the consequential orders in the lead judgment.
Appearances:
E. C. Mere, Esq.For Appellant(s)
N. C. Dike, Esq. (whose brief was settled by Chief J. Ebuzo Onyenucheya (KSM) LL.M)For Respondent(s)
