UZOAMAKA N. OGOKE & ANOR v. BENSON OGOKE
(2012)LCN/5482(CA)
In The Court of Appeal of Nigeria
On Thursday, the 21st day of June, 2012
CA/PH/324/2006
RATIO
PLEADINGS: IMPORTANCE OF PLAINTIFF’S CLAIM
it is the law that, it is the plaintiffs claim as contained in the statement of claim that the court will resort to. In other words, in determining the cause of action in a particular suit, the court must examine the totality of the writ of summons and the statement of claim. To that end, the whole body of the statement of claim is to be examined by the court. See ADEKUNLE v. AREMU (1998) 1 NWLR (Pt.533) pg.203 at 221; DALFAM v. OKAKU (2001) 35 W.R.N. pg.43 at 47 and MICHAEL v. STATE (2002) 1 NWLR (Pt.748) pg.500 at 511. In the respect, in considering or determining the cause of action in a particular suit, the court must restrict itself to the facts as pleaded in the statement of claim without having any recourse to the pleadings in the opponent’s statement of defence. See SHELL BP. LTD. & ORS v. ONASANYA (1976) N.S.C.C. pg.334 at 336. I have carefully perused the pleadings of the Respondent as the Plaintiff before the lower court in his Amend Statement of Claim.PER HARUNA M. TSAMMANI, J.C.A.
CAUSE OF ACTION: WHEN CAUSE OF ACTION ARISES
See HUMBE v. A.G. BENUE STATE (2000) 3 NWLR (Pt.649) pg.419. The cause of action therefore accrues on the date on which the incident giving rise to the cause of action occurred. See AGEDAH v. NKWICHA (2002) 9 NWLR (Pt.711) pg.113; ADEOSUN v. JIBESIN (2001) 12 W.R.N. pg.106 and OYETAYO v. MOSOJO (1997) 10 NWLR (Pt.526) pg.637.PER HARUNA M. TSAMMANI, J.C.A.
APPEAL: ISSUES FOR DETERMINATION: MUST BE BASED ON GROUNDS OF APPEAL FILED BY APPELLANT
It is now settled that issues for determination must be based on the grounds of appeal filed by the Appellant. In other words, issues for determination are distilled or formulated from grounds of appeal filed by the Appellant. Thus, if the issues formulated are not related to any of the grounds of appeal filed by the Appellant, they are irrelevant. Accordingly, such issue(s) and arguments anchored thereon will be discountenanced. Similarly, any issue formulated by a Respondent for determination in an appeal must relate to the grounds of appeal filed by the Appellant, save when such Respondent has either filed a cross-appeal or a Respondent’s notice. see ADELAJA v. FAMAIKI (1990) 2 NWLR (Pt.131) pg.137; MOMODU v. MOMOH (1991) 22 N.S.C.C. pg.212 and IBATOR v. BABAKURO (2007) 9 NWLR (Pt.1040) pg.475. So also, a party will not be permitted to raise on appeal any issue or question which was not raised, tried and considered in the court below without the leave of the court. See BANKOLE V. PELU (1991) 8 NWLR (Pt.211) pg.523; OKONKWO v. OGBOGU (1996) 5 NWLR (Pt.449) Pg.420 and YUSUF v. U.B.N. LTD. (1996) 6 NWLR (Pt.457) Pg.632.PER HARUNA M. TSAMMANI, J.C.A.
JUSTICES
UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
HARUNA M. TSAMMANI Justice of The Court of Appeal of Nigeria
Between
1. UZOAMAKA N. OGOKE (Nee NWAKOR)
2. MRS. S. C. NWAKOR Appellant(s)
AND
BENSON OGOKE
(By his Attorney Godson Ogoke) Respondent(s)
HARUNA M. TSAMMANI, J.C.A. (Delivering the Leading Judgment): This is an interlocutory appeal against the decision of A. U. Kalu, J of the High Court of Abia State sitting at Umuahia, delivered on the 9th day of January, 2005
By Writ of Summons dated the 1st day of July, 2002 and filed the 22nd day July, 2002, the Respondent claimed jointly and severally against the Appellants, the return of certain personal properties and cash valued at seven hundred and eighty-five thousand, six hundred and fifty Naira (N785,650.00) unlawfully removed from the Respondent’s house by the 1st Appellant and detained in the 2nd Appellant’s house. Alternatively, he, claimed the sum of ten million Naira (N10,000,000.00) as special and general damages for the wrong detention of those properties and cash. Specifically, the Respondent’s claim before the lower court as stated in paragraph 12 of the Amended statement of claim is for:
(a) Return of the Plaintiff’s personal properties and cash valued N785,650.00 (Seven hundred and eighty-five thousand, six hundred and fifty Naira) which the 1st Defendant “without the knowledge and consent of the Plaintiff” removed from the Plaintiff’s house at No.60, Uwalaka Street, Umuahia and kept in the custody of the second and third Defendants at No.7 School Road, Umuahia.
(b) Alternatively, the sum of N10 million Naira as special and general damages for wrongful detention of the Plaintiff’s properties and cash.
Upon being served, the Appellants filed a conditional memorandum of appearance and a joint statement of defence both dated and filed the 26/4/04.
By the record of appeal when the matter came up for hearing on the 25/4/2005, learned counsel for the Appellants informed the court that he has a preliminary objection to the competence of the suit. The said preliminary objection was taken on the said 25/4/2005, wherein learned counsel for the Defendants/Appellants contended that, the lower court had no jurisdiction to hear the suit on the ground that the respondent has no cognizable cause of action, in that the Respondents action is based on detinue which is a claim in tort. That by the proviso to section 10 of the Married Women’s Property Law Cap.26, Laws of Abia State of Nigeria, neither husband nor wife can maintain an action in tort against the other. After taking and considering the arguments from both sides, the learned trial judge in a considered ruling dated the 9th day of January, 2006, dismissed same. It is against that Ruling that the Appellants have filed this appeal.
The Notice of Appeal consisting of two grounds of Appeal was dated the 23/01/2006 and filed the 24/1/2006. For ease of reference, I propose to reproduce those grounds of appeal, but without their particulars. They are:
1. Learned trial judge erred in law when he held that “… In my understanding, the relationship of husband and wife between plaintiff and the 1st Defendant extinguished or expired or vanished, either of them could sue in tort against the others”; without first determining correctly when the plaintiff’s cause of action arose and the relationship between the plaintiff and the 1st Defendant at the time of accrual of cause of action.
2. The learned trial judge misdirected himself when he held “… Interestingly, the proviso to section 10 demands that, no husband or wife shall be entitled to sue the other for tort”. This proviso is where the defence is anchoring its argument. The argument of the defence was not only compelling, persuasive, but forceful but I cannot prevail upon myself to agree with it. The reason is because a thorough and painstaking understanding of the proviso shows that the law maker wishes to dissuade spouses from suing each other in tort as long as (sic) they remain husband and wife and not before or after. In other words, in my understanding, immediately the relationship of husband and wife between the 1st Defendant extinguished or expired or vanished either of them could sue in tort against the other.”
As required by the Rules of this court, the parties filed and exchanged briefs of Argument. The Appellants’ brief of argument, settled by Obi C. Nwallor Esq. was dated and filed the 23/01/2007. The Respondent’s brief of argument which was settled by B. N. Onuha Esq. was dated and filed the 01/3/2007. At the hearing of the appeal on the 02/4/2012, both parties adopted and relied on their respective Briefs of Argument as their arguments in this appeal. I wish to point out also that, the Appellants filed a Reply Brief dated the 04/4/2007, but deemed filed the 08/12/2011.
From the two Grounds of Appeal, the Appellants formulated only one issue for determination as follows:
1. Whether the learned trial judge was right in refusing the Appellants’ objection in view of
(a). The Respondent’s Statement of Claim, (b) Section 10 Married Women Property Law Cap. 26, Vol.2, Laws of Abia State, 1999.
The Respondent on the other hand, nominated two issues for determination. They are:
“1). Whether the court below was right in overruling the objection of the Defendants/Appellants to the effect that it lacked jurisdiction to section 10 (sic) of the Married Women Property Law, Cap.26, Vol. 2 Laws of Abia State, 1999.
2).Whether the striking out of the name of the 1st Defendant/Appellant automatically discharges the other Appellant in view of section 19 (a) of the Tort Law, Cap.34 of the Laws of Abia State of Nigeria.”
Arguing the sole issue formulated by the Appellants, learned counsel for the Appellants contended that, it is the law that it is the claim of the Plaintiff and not the defence of the Defendant that the court would look into in order to determine whether or not it has jurisdiction. The cases of ADEYEMI v. OPEYORI (1976) 9-10 S.C. pg.31 at 49; BARCLAYS BANK v. CENTRAL BANK (1976) 6 S.C. pg.175 at 193; ABU v. ODUGBO (2001) 4 WRN pg.1 at 55 and MORIKI v. ADAMU (2002) 5 WRN pg.78 at 87, were then cited to submit that, the court must therefore examine the averments in the statement of claim to determine if it discloses a cognizable or reasonable cause of action that vests jurisdiction on the trial court. He also referred to the definition of “cause of action” in the case of ADEOSUN V. JIBESIN (2004) 14 WRN pg.100 at 135 – 136, to further submit that, those legal principles when situated with the Respondents statement of claim show that both the 1st Appellant and the Respondent were at all times material to this suit, husband and wife. He also relied on paragraph 2 of the said statement of claim to add that, the averment therein is a conclusive statement of fact of the relationship of the 1st Appellant and the Respondent.
Learned Appellants’ counsel also reproduced the provision of section 10 of the Married Women’s Property Law, Cap. 26 Laws of Abia State, 1999 and the statement of the learned trial judge at page 28 of the record of appeal to further submit that it is clear that, the Respondent’s claim is grounded in tort, as correctly found by the learned trial judge. That it is also established that the Respondent and the 1st Appellant were married and that the act complained of by the Respondent against the 1st Appellant was committed during the pendency of the marriage. That though there is dearth of local precedent on the interpretation of section 10 of the Married Women Property Law, Cap. 26, Laws of Abia State, 1999, the English case of RALSTON v. RALSTON (1930) 2 K.B. pg.238 at 244, which was decided on a law which is in pari materia, supports the Appellants case. The English case of PHILIPS v. BARNET (1876) 1 Q.B.D. pg.436 was also cited in support. It was therefore submitted by the learned counsel for the Appellants that, the decision of the learned trial judge is a travesty of justice. We were then urged to allow the appeal, set aside the decision of the learned trial Judge and dismiss the appeal.
Learned counsel for the Respondent submitted on this issue that, courts are in existence to do substantial justice according to law. Referring to the holding of the learned trial judge at page 29 of the record of appeal, he proceeded to submit that, there are facts in the pleadings before the trial court to show that the marriage between the Respondent and the 1st Appellant existed only on paper. That it was pleaded at paragraph 2 of the statement of claim the 1st Appellant had filed a divorce petition against the Respondent at the High Court Umuahia, in suit No. HU/3D/2002, which was then pending. That simple arithmetic would show that from the time the 1st Appellant carted away the Respondent’s household properties, to the date of institution of this suit, covered a period of four years; namely, from January, 1999. He relied on paragraph 4 of the statement of claim for that contention and to submit also that, the Respondent and the 1st Appellant had therefore lived apart for a period of four years prior to the filing of this suit. It is therefore submitted by learned counsel for the Respondent that, recent decisions of the Supreme Court and of this court show that, the courts have moved away from technicalities of substantial justice. The cases of CLIFFORD COUSIN & ORS. v. TEMPLEMAN ODEJIGBA (2005) 26 WRN pg.66 and EXECUTIVE GOVERNOR, EKITI STATE v. C.S.C., EKITI STATE (2005) 4 WRN pg.81 were cited in support.
Learned counsel for the Respondent went on to submit that, it is not in doubt that at the time the Respondent sued the Appellant so the 1st Appellant had filed for divorce. That it means that for the 1st Appellant, the marriage had broken down irretrievably having lived apart from the Respondent for a period of four years. It is therefore his submission that, in the circumstances, such a person cannot be heard to claim protection under section 10 of the Married Women’s Property Law, Cap.26, Laws of Abia State, 1999. We were then urged to uphold the decision of the court below and to dismiss the appeal.
The Appellants filed a Reply Brief. Therein, learned Appellants’ counsel submitted that what the Respondent did in his brief was to supply evidence which has not been placed before the trial court. That it is not permissible in law. He cited the case of MAJEKODUNMI v. NIGERIA ARMY (2003) 31 W.R.N. pg.138 at 148 in support. Learned counsel then proceeded to rely on the case of CAPITAL BANCORP LTD. v S.S.L. LTD. (2007) 3 NWLR (Pt.1020) pg.148 to submit that, jurisdiction vests at the time of accrual of the cause of action which in this case was in 1999. That at the time the Respondent sued in 2002, the Respondent and the 1st Appellant were husband and wife. That in any case, dissolution of a marriage does not make a cause of action which was not so before. That even after divorce, the Respondent could still not sue the 1st Appellant for a tort committed when the marriage was undissolved.
I have carefully considered the submissions of the learned counsel for the Appellants and the Respondent. Having thus considered I begin the resolution of this issue by stating that, it is the law that, it is the plaintiffs claim as contained in the statement of claim that the court will resort to. In other words, in determining the cause of action in a particular suit, the court must examine the totality of the writ of summons and the statement of claim. To that end, the whole body of the statement of claim is to be examined by the court. See ADEKUNLE v. AREMU (1998) 1 NWLR (Pt.533) pg.203 at 221; DALFAM v. OKAKU (2001) 35 W.R.N. pg.43 at 47 and MICHAEL v. STATE (2002) 1 NWLR (Pt.748) pg.500 at 511. In the respect, in considering or determining the cause of action in a particular suit, the court must restrict itself to the facts as pleaded in the statement of claim without having any recourse to the pleadings in the opponent’s statement of defence. See SHELL BP. LTD. & ORS v. ONASANYA (1976) N.S.C.C. pg.334 at 336. I have carefully perused the pleadings of the Respondent as the Plaintiff before the lower court in his Amend Statement of Claim.
Now the averments of the Plaintiff/Respondent which I find germane to the determination of this issue are as stated in paragraphs 2, 4, 5, 6, 7 and 10 of the Amended Statement of Claim. For ease of reference, I endeavour to reproduce them hereunder:
2. The 1st Defendant was at all times material to this suit, the wife of the plaintiff and has filed a Divorce Petition against the plaintiff) as per Suit No.HU/3D/2002 pending at High Court, Umuahia).
4. On or about the month of January 1999, while the plaintiff was abroad, the 1st Defendant unlawfully removed all valuable household properties of the plaintiff and cash and after keeping those properties in the house of the 2nd and 3rd Defendants and in their custody, the 1st Defendant could not be traced.
4. On or about the month of January 1999, while the plaintiff was abroad, the 1st Defendant unlawfully removed all valuable household properties of the plaintiff and cash and after keeping those properties in the house of the 2nd and 3rd Defendant and in their custody, the 1st Defendant could not be traced.
5. The Plaintiff was informed of the conduct of the 1st Defendant when he came back in January, 1999 to discover that the 1st Defendant removed the following properties:
(a) Panasonic Multi-system Television Set and video Machine valued at 633,000 CFA or N94,950.00 (Ninety-four thousand, nine hundred and fifty naira).
(b) Panasonic video camera valued at 750,000.00 CFA or N112,500.00 (One hundred and twelve thousand, five hundred Naira).
(c) Carana Photographic Camera valued at 150,000 CFA or N22,000.00 (Twenty-two thousand Naira).
(d) NEC video machine valued N6,500.00 (Six thousand, five hundred Naira).
(e) Gold Jewels valued 98,000 CFA or N14,700.00 (Fourteen thousand, seven hundred Naira).
(f) Traditional Marriage & Wedding cassette valued N10,000.00 (Ten thousand Naira).
(g) Wearing apparels valued
(h) Wedding gifts valued N40,000.00 (Forty thousand Naira).
(i) N20,000.00 (twenty thousand Naira) cash.
(j) A total sum of $3,000.00 (Three thousand US Dollars) and 10,000 (or its equivalent $1,500 US Dollars) kept in her custody for building a house in the village, totaling $4,500 US Dollars. The Naira equivalent N468,000.00.
(k) The sum of N5,000.00 (Five thousand Naira) sent to Kasim photos.
6. The Plaintiff complained about the above missing properties carted away from his house by the 1st Defendant to the 2nd Defendant who asked him to tabulate the value of all the properties and wedding expenses promising to pay same to the Plaintiff and the plaintiff did so in a letter dated 16th day of May, 2000.
7. The Plaintiff later reported the matter to the police at the central police station Umuahia, but till date the police did nothing about the case.
10. The Plaintiff is aware that the afore-listed properties are still in the custody of the Defendants who are in wrongful detention of same.
It is clear from the above cited averments in the Respondent’s statement of claim that, he claims for certain properties and cash which the l” Appellant carted away from the Respondents house and kept same in the custody of the 2nd Appellant. It is also clear that the incident occurred sometimes in January, 1999 when the Respondent and 1st Appellant were still husband and wife. The Respondent therefore claimed for the return of those properties and cash unlawfully taken and detained by the Appellants. That claim is therefore a claim for detinue, which is a claim in tort. It is on that score that the Appellants contend that the Respondent is barred from suing in tort since the act complained of took place at a time when the Respondent and the 1st Appellant were yet husband and wife. They find strength for their contention on section 10 of the Married Women Property Law, Cap.26, Laws of Abia State, 1999. That Law stipulates that:
“10. Every woman whether married before or after the commencement of this Law shall have in her own name against all persons whomsoever including her husband the same civil remedies for the protection and security of her property as if she were a femme sole; provided that except as aforesaid no husband or wife shall be entitled to sue the other in tort.”
The above cited provision, of the Married Women’s Property Law (supra) of Abia State, is a statutory affirmation of the common law principle that, both husband and wife are prohibited from suing each other in tort for actions accruing between them during the subsistence of their marriage. This principle is an exception to the general provision which entitles a married woman to sue all persons, including her husband for the protection and security of her own property, as if she were a femme, sole. It would appear that, the husband has no such protection against his wife for the protection of his separate property. Generally however, the proviso to section 10 of the Married Women’s Property Law of Abia State (supra) prohibits spouses from suing each other in tort for actions arising in the course of their relationship during the pendency or subsistence of the marriage. In that respect, to determine this issue, the question will rest on whether or not the act leading to the institution of the action subject of this appeal occurred during the subsistence of the marriage relationship between the Respondent and the 1st Appellant. In other words, it would be necessary to determine when the cause of action arose.
In answering that question, it is pertinent to point out that, it will be necessary to scrutinize the statement of claim, in order to determine when the cause of action arose. The cause of action in this case, would be the acts or omissions of the Defendants/Appellants which gave the Plaintiff/Respondent the right to seek judicial relief.
See HUMBE v. A.G. BENUE STATE (2000) 3 NWLR (Pt.649) pg.419. The cause of action therefore accrues on the date on which the incident giving rise to the cause of action occurred. See AGEDAH v. NKWICHA (2002) 9 NWLR (Pt.711) pg.113; ADEOSUN v. JIBESIN (2001) 12 W.R.N. pg.106 and OYETAYO v. MOSOJO (1997) 10 NWLR (Pt.526) pg.637. In the instant case, the Respondent pleaded at paragraphs 2, 4 and 5 of the Amended Statement of Claim that at all material time to this suit, the 1st Appellant was married to him, though the said Appellant had filed a petition for divorce. That it was in 1999 that he was informed that the 1st Appellant had unlawfully removed his properties and cash listed in paragraph 5 of the statement of claim, and kept them in the house of the 2nd Appellant. It is therefore clear that the cause of action accrued to him in 1999, when the 1st Appellant removed those properties to the house of the 2nd Appellant. This action was however instituted only in 2002, which is about three years after the incident. By the Respondent’s statement in paragraph 2 of the statement of claim, the incident occurred when both of them were still husband and wife. It is worthy of note that the divorce petition was filed only in 2002, which is the same year the Respondent instituted this action.
From the above stated findings, it is very obvious that the act or acts of the 1st Appellant leading to the institution of this action by the Respondent occurred in 1999, which is a period when the marriage between the 1st Appellant and Respondent was subsisting. Indeed, I dare say that, the marriage between them was still subsisting as at 2002, when the Respondent instituted this action at the lower court. The fact that the 1st Appellant had filed for divorce is of no moment as the said divorce petition had not been determined. In law therefore, that marriage still subsisted. That being so, the Respondent could not validly institute an action in tort against the 1st Appellant in view of the proviso to section 10 of the Married Women’s Property Law of Abia state (supra). This issue is therefore resolved in favour of the Appellants.
The Respondent had formulated a second issue, which asked whether the striking out of the name of the 1st Appellant automatically discharges the other Appellant in view of section 19 (a) of the Tort Law, cap.34 of the Laws of Abia State of Nigeria. He argued thereat that, the Respondent had sued the Appellants “Jointly and severally”, and that by section 19(a) of the Tort Law of Abia state (supra), the Appellants are joint tortfeasors. That even if it is found that section 10 of the Married Women’s Property Law (supra) avails the 1st Appellant, this suit can still be proceeded with against the 2nd Appellant.
The response of the Appellants in their Reply Brief is that, an appeal is a challenge against the decision of a trial court and not predicated upon what a court has not decided in its judgment or ruling. That in the instant case, the question or issue of discharge or otherwise of joint tortfeasors did not arise from the Appellants’ grounds of appeal, as there is no decision of the trial court on that point. Furthermore, that, though a Respondent can frame an issue or issues different from those framed by the Appellant, such issues must be distilled from or be related to the grounds of appeal. That a Respondent who has neither cross-appealed nor filed a Respondent’s notice cannot frame issues that are not distilled from or related to the grounds of appeal filed. He relied on the cases of ADEYEMO v. IDU (1998) 4 NWLR (Pt.546) pg.504; MOGAJI v. MILAD; EKITI STATE (2000) 2 NWLR (Pt.538) pg.425; SHIE v. LOKOJA (1993) 3 NWLR (Pt.540) pg.56; MAJEKODUNMI v. CO-OP BANK LTD. (1997) 10 NWLR (Pt.524) pg.189; ESURUMOSO v. OGIDI (2002) 35 W.R.N. pg.129 and OSHOTOBA v. OLUJITAN (2000) 5 NWLR (Pt.655) pg.159, to submit that, since there was no pronouncement on issue No. 2 framed by the Respondent by the lower court, it should be struck out.
It is now settled that issues for determination must be based on the grounds of appeal filed by the Appellant. In other words, issues for determination are distilled or formulated from grounds of appeal filed by the Appellant. Thus, if the issues formulated are not related to any of the grounds of appeal filed by the Appellant, they are irrelevant. Accordingly, such issue(s) and arguments anchored thereon will be discountenanced. Similarly, any issue formulated by a Respondent for determination in an appeal must relate to the grounds of appeal filed by the Appellant, save when such Respondent has either filed a cross-appeal or a Respondent’s notice. see ADELAJA v. FAMAIKI (1990) 2 NWLR (Pt.131) pg.137; MOMODU v. MOMOH (1991) 22 N.S.C.C. pg.212 and IBATOR v. BABAKURO (2007) 9 NWLR (Pt.1040) pg.475. So also, a party will not be permitted to raise on appeal any issue or question which was not raised, tried and considered in the court below without the leave of the court. See BANKOLE V. PELU (1991) 8 NWLR (Pt.211) pg.523; OKONKWO v. OGBOGU (1996) 5 NWLR (Pt.449) Pg.420 and YUSUF v. U.B.N. LTD. (1996) 6 NWLR (Pt.457) Pg.632.
I have carefully read the ruling of the lower court, which is contained at pages 26-29 of the record of appeal. Nowhere in that ruling is the issue of liability of joint tortfeasors under section 19(a) of the Torts Law of Abia State (supra) considered. That issue is therefore not part of the ratio decidendi of that ruling of the lower court. It was not even mentioned obiter by the learned trial judge. It did not form part of the submissions of counsel before the lower court. That issue was not also raised by the two grounds of appeal filed by the Appellants. That issue is therefore entirely new to this proceedings and indeed this appeal. Most importantly the Respondent did not seek the leave of this court to raise same. I therefore find and do hold that issue No. 2 raised by the Respondent is incompetent. So also the argument anchored thereon is irrelevant. Accordingly, that issue is hereby struck out, and the argument thereon is discountenanced.
On the whole therefore, I find that the learned trial judge was in error when he over-ruled the preliminary objection of the Appellants. The appeal therefore has merit and is accordingly allowed. Thus, this Suit No.HU/131/2002 before the lower court is incompetent. I therefore set aside the ruling of the lower court delivered on the 9th day of January, 2005. The suit being incompetent is accordingly dismissed.
I make an order of Thirty thousand Naira (N30,000.00) as costs against the Respondent in favour of the Appellants.
UWANI MUSA ABBA AJI, J.C.A.: I have had a preview of the judgment of my Learned brother H. M. Tsammani, JCA just delivered and I agree entirely with the reasoning and conclusion that the appeal has merit and it is also allowed by me.
I just wish to add that the Learned trial Judge made it clear in his judgment that the Respondent’s claim is grounded in tort and it was also established before him that the Respondent and the 1st Appellant were married and that the act complained of by the Respondent against the 1st Appellant was committed during the pendency of the marriage. Then, the provision of section 10 of the Married women Properly Law Cap. 26 Laws of Abia State, 1999 comes in to save the situation. It is of no moment to say that the marriage only existed on paper as contended by the Learned Respondent’s counsel. The fact that the 1st Appellant had filed a divorce petition against the Respondent at the High court, Umuahia in suit No. HU/30/2006 which was then pending or that the parties have lived apart for a period of four (4) years is immaterial, so long as there is no pronouncement by a competent court of law nullifying the marriage between the 1st Appellant and the Respondent. There is no decree absolute.
I agree with the Learned Counsel for the Appellant that the decision of learned trial judge is a travesty of justice. After correctly pronouncing on the position of the law, he cannot say he cannot prevail upon himself to agree with it. The law prohibits both husband and wife from suing each other in tort for actions accruing between them during the subsistence of their marriage. In other words, the law prohibits spouses from suing each other in tort for actions arising in the course of the relationship during the subsistence of their marriage.
For this and the detailed reasons stated in the lead judgment, I also allow this appeal and endorse the consequential order to costs.
MOJEED A. OWOADE, J.C.A.: I read in draft the judgment delivered by my learned brother Haruna M. Tsammani, JCA. I agree with the reasoning that by virtue of the provision of Section 10 of the Married Women Property Law, Cap. 26 Laws of Abia State, 1999, no husband or wife shall be entitled to sue the other in tort in the pendency of the marriage.
The suit which led to this appeal is an action in detinue and therefore cannot be maintained by the husband as against the wife. The suit is therefore incompetent.
I also allow the appeal and abide with the consequential orders.
Appearances
A. C. Okoroafor; Esq.For Appellant
AND
B. N. Onuoha; Esq.For Respondent
