OBIOHA & ORS v OBIOHA

OBIOHA & ORS v OBIOHA


IN THE COURT OF APPEAL
IN THE OWERRI JUDICIAL DIVISION
HOLDEN AT OWERRI

ON FRIDAY, 15TH JANUARY, 2016


Appeal No: CA/OW/359/2010
CITATION:

Before Their Lordships:

IGNATIUS IGWE AGUBE, JCA

ITA GEORGE MBABA, JCA

FREDERICK O. OHO, JCA


BETWEEN

CHIEF SOLOMON OBIOHA

PASTOR CHIDI OBIOHA

MADAM MONICA OBIOHA

MRS. ELIZABETH CY NWUKE

MR. CY NWUKE

(APPELLANTS)

AND

MRS. IFY OBIOHA

(RESPONDENT)


PRONOUNCEMENTS


A. ACTION
1. Pleadings – Primary function of pleadings

W h e t h e r pleadings can contain evidence

“Appellants Counsel seem to have forgotten that under the rules of pleadings parties do not plead evidence but just the facts. The Supreme Court in the case of OJUKWU vs. YAR ADUA (2009) 12 NWLR (PT.1154) 50 per TOBI, JSC (as he then was) had this to say on the issue;”

Facts are the fountain head of pleadings as they are the basis of pleadings. That gives rise to the definition of pleadings as statements of fact. A party cannot lead evidence on a fact not pleaded. See OKPALA vs. IHEME (1989) 2 NWLR (PT. 102) 208; SPDC LTD vs. NWAWKA (2003) 6 NWLR (PT. 815) 18.

The primary function of pleadings is to define and delimit with clarity and precision the real matter in controversy between the parties upon which they prepare and present their respective cases and upon which the Court will be called to adjudicate between them. See ATOLAGBE vs. SHORUN (1985) 4 S.C. (PT. 1) 250.” Per OHO, JCA read in context

B. JURISDICTION
2. Jurisdiction of the State High Court – Jurisdiction of the State High Court over a letter of administration issued in respect of properties outside the state

Jurisdiction of State High Court over letter of administration issued outside the State

“In any case, the attitude of this Court in respect of issues of this nature is that wherever the Respondent applied to for the grant of a letter of Administration is usually of no consequence. This Court, per AUGIE, JCA had this to say in the case BALOGUN V. AGBARA ESTATES LIMITED (2007) LPELR-8794 (CA);”

It is well settled that the High Court of a State has jurisdiction to entertain an action arising from the administration of the estate of a deceased person who died intestate notwithstanding that the Letters of Administration is in respect of properties within the State while the Estate includes properties outside the State- see SALUBI vs. NWARIAKU (2003) 7 NWLR (PT. 819)426; AMOBI vs. NZEGWU (2005) 12 NWLR (PT. 938) 120 & OKONYIA vs. IKENGAH & ORS (Supra).” Per OHO, JCA read in context

C. PRACTICE AND PROCEDURE
3. Rules of Court – Effect of non-compliance with rules of Court on a judgment

Effect of non-compliance with rules of Court

“The settled position of the law is that non-compliance with rules of Court will not necessarily result in the setting aside of a judgment of Court especially where it is adequately demonstrated that copious steps were taken by the party complaining about the breach of the rules which he has since waived.” Per OHO, JCA read in context

4. Pre-Trial Conference – Reason for a pre-trial conference

Essence of a pre-trial conference

“What should probably be borne in mind is the fact that the pre-trial conference is a recent addition to the regime of laws governing the new set of civil procedure rules of the High Court system in Nigeria, and that it is only meant to speed up the hitherto comatose civil trials which were conducted under rules which had outlived their usefulness due to failures to keep pace with the fast tempo of modern day commercial and other civil transactions.” er OHO, JCA read in context

5. Rules of Practice and Procedure – Effect of breach of a rule of practice on a proceeding

Effect of breach of rule of practice

“Besides all of these, the breach of a rule of practice can only render a proceeding irregularly conducted and not a nullity. See the case of GAMBARI vs. BUHARI (2009) ALL FWLR (PT. 479) 458 AT 501.” Per OHO, JCA read in context


LEAD JUDGMENT DELIVERED BY OHO, JCA


In the High Court of Imo State of Nigeria Holden at Orlu Judicial Division, Judgment was delivered on the 21-6-2010 in suit No. HOR/149/2008 in favour of the Plaintiff/Respondent when learned trial Judge granted the Claims of the Plaintiff and awarded in her favour the right to take control and manage her deceased husband’s estate to be included in a letter of administration to which Court declared she was qualified to apply for. The Court also ordered the 2nd Defendant to render an account of all rents collected and proceeds from D85 Head Bridge to the Claimant and her Children and a restraining Order against the Defendants, their agents, servants etc. from interfering, confiscating, controlling or laying claims over any property that constituted the estate of the claimants deceased Husband. The Respondent as Plaintiff commenced this suit by writ of summons filed on the 20-8-2008 and by a Statement of claim dated 28-1-2009 at paragraph 17 claimed the following:

17. WHEREFORE the Plaintiff claims against the Defendants jointly and severally:

1. A DECLARATION that the Plaintiff by virtue of her marriage to the deceased and sole partner in the acquisition of all property that constitutes the estate of the Husband is entitled to the control, management and application for letters of administration.

2. A Declaration that the Plaintiff is entitled to the Ownership and control of all properties listed on paragraph 7 of this claim to the exclusion of all the defendants who may only advise.

3. A Declaration that the 2nd Defendant renders account of all rents collected and proceeds from D85 bridgehead be declared to the Plaintiffs and the Children.

4. Perpetual Injunction restraining the Defendants their agents, servants or privies from interfering, confiscating, controlling or laying claim over any property that constitutes the estate of the plaintiffs Husband.

The Defendant/Appellant herein denied the claims of the Plaintiff/Respondent through the filing into Court of a Statement of defense dated the 19-3-2009 and filed same date.

Parties fielded their witnesses in the trial and at the close of hearing learned Counsel addressed Court extensively, citing a plethora of decided cases. The learned trial Judge delivered its Judgment on the 21-6-2010 giving judgment in favour of Plaintiff/Respondent.

Dissatisfied with the judgment of the lower Court the Defendants/Appellants have appealed to this Court vide an original Notice of Appeal dated 28-6-2010 and filed on 1-7-2010 containing a Ground. However, by an application to that effect, the Appellant sought the leave of Court which was granted and the original Notice of Appeal was amended allowing for the filing of an Additional Eight (8) Grounds of Appeal bringing it all to nine (9) which without their particulars are reproduced as follows;

GROUNDS:

1. The learned trial judge erred in law when he assumed jurisdiction in this suit.

2. The learned trial judge erred in law in entertaining the suit, subject matter of this Appeal when it lacked the jurisdiction to do so.

3. The trial High Court 2, Orlu Imo State erred in law to have chosen without any reason one out of the two separate statements of claim filed by the Plaintiff without first inviting any addresses by the parties Counsel despite the argument without any reason of the trial High Court in his judgment that the reliefs in the 1st statement of claim “were however overtaken by the reliefs in the claimant’s statement of claim dated and filed on 12th of February, 2009.”

4. The trial High Court erred in law to have given judgment to the plaintiff based on the pleadings only and unproved facts.

5. That the trial High Court was biased when he pre-empted his judgment in the suit when he made the pronouncement in a ruling concerning the material issues in dispute in the substantive suit whereas the parties have not testified by adopting their depositions and possibly cross examined, did not conduct pre-trial conference and even interfered by debarring the claimant from answering material questions during her cross-examination.

6. That the claimant has no locus standi to institute the suit which is a probate action.

7. The trial High Court erred in law to have held that the marriage between the claimant and Victor Obioha (the deceased) was subsisting by the time the action was commenced.

8. That the trial High Court erred in law to have admitted evidence at variance with the pleadings.

9. The trial High Court erred in law to have given judgment to the plaintiff not based on evidence but on the pleadings.

Parties filed and exchanged briefs of argument. In the Defendant/Appellants (hereinafter called; the Appellants), brief of argument was settled by Mrs. N. D. Iwu dated 31-7-2013 and filed 14-8-2013. Three (3) issues were nominated for the Courts determination to wit:

1. Whether the lower Court was right in holding that the marriage between the respondent and her deceased husband was a Christian marriage as recognized by the Marriage Act, Cap M6., LFN, 2004?

2. Whether the lower Court had the jurisdiction to make pronouncements as to the entitlement of items of property lying and situate outside its territorial jurisdiction?

3. Whether the lower Court lacked the requisite jurisdiction to determine this suit without conducting a pre-trial conference which is a pre-condition to the exercise of the jurisdiction by Court in this case?

The Plaintiff/Respondents (hereinafter called; the Respondent) brief of argument was settled by Justice A. David, Esq., who adopted the issues nominated by the Appellant herein and upon which he also addressed Court. For this reason this Court shall also adopt the issues nominated by the Appellant in determining this Appeal.

ARGUMENTS OF APPELLANT’S COUNSEL ISSUE ONE;

Whether the lower Court was right in holding that the marriage between the respondent and her deceased husband was a Christian marriage as recognized by the Marriage Act, Cap M6., LFN, 2004?

It was the submission of learned Appellant’s Counsel that the lower Court was wrong in holding that the marriage between the respondent and her deceased husband was a Christian marriage as recognized by the Marriage Act Cap M6 LFN 2004. Counsel referred Court to Section 21 of the Marriage Act Cap M6 LFN 2004, as it relates to the celebration of marriage which provides as follows:

“Marriage maybe celebrated in any licensed place of worship by any recognized minister of the church, denomination or body to which such place of worship belongs and according to the rites or usages of marriage observed in such church, denomination or body: provided that the marriage be celebrated with open doors between the hours of eight o’clock in the forenoon and six o’clock in the afternoon, and in the presence of two or more witnesses besides the officiating minister”.

It was the argument of learned Counsel that Section 21 of the Marriage Act in essence spells out factors which constitutes a valid Christian marriage as recognized by the law. He argued further that a Christian marriage as recognized by the Act is to be celebrated in a licensed place of worship by a recognized minister of the church, denomination or body to which such place of worship belongs, in accordance with the rites or uses of marriage observed in such church, denomination or body. As far as Counsel is concerned to be valid, the marriage shall be celebrated with open doors between the hours of eight o’clock in the forenoon and six o’clock in the afternoon, and in the presence of two or more witnesses besides the officiating ministers. Counsel cited the case of IJIOMA vs. IJIOMA (2009) 12 NWLR (PT. 1156) 593 AT 608 – 608.

Counsel contended that anyone desirous of establishing that a marriage is a Christian marriage recognized by the Act must show that the marriage so contracted complied with the provisions of Section 21 of the Marriage Act. In addition, Counsel said that to prove compliance with the provisions of Section 21 of the Act, every certificate of marriage filed in the office of the registrar of marriages of any district, or any copy thereof purporting to be signed and certified as a true copy by the registrar and every entry in a marriage registrar’s book or copy thereof certified shall be admissible as evidence of the marriage to which it relates in any Court of law. See IJIOMA vs. IJIOMA (supra) pg. 599.

It was further contended by Counsel that a celebration of marriage in a church which does not comply with the provisions of Section 21 of the Act is at best a mere church blessing. In the instant case, he argued, that the learned trial Judge based his judgment on the evidence led by the respondent as to the type and status of the marriage she contracted with the deceased where she said at page 176 of the records of Appeal as follows;

I wedded at the church on 12th April 1997 being a Saturday and on Monday 14th April 1997 my husband took me to the marriage registry at Kano State where I signed documents relating to our marriage.”

Learned Counsel said that apart from the fact that the Respondent said that she went to the said marriage registry only with the husband, that the evidence led on facts were not pleaded by the Respondent. Counsel submitted that evidence led on facts not pleaded goes to no issue. He cited the case of NATIONAL INVESTMENT PROPERTIES CO. LTD. vs. THE THOMPSON ORGANISATION LTD. (1969) NWLR AT 104 on the issue. Counsel said that the trial judge erred in relying on the case of SALIMOTU COKER & 5 ORS vs. ALFRED BABATUNDE COKER & ANOR. VOL. 17 NLR R55 & OLOWU vs. OLOWU (1985) 3 NWLR (PT. 13) 372 to hold that the Respondent having contracted a Christian marriage, the deceased estate is subject to English Law for the purpose of distribution of his estate upon intestacy.

It was also argued by Counsel that the two cases cited above are distinguishable from the instant case. He said that in the former, the marriage contracted by the parties were Christian marriages as recognized by the marriage Act while in respect of the latter, he argued that the marriage celebrated between the respondent and the deceased was not a Christian marriage recognized by the Marriage Act, but was rather, a mere church blessing, different from a Christian marriage recognized by the Act.

It was further contended by Counsel that a fact not proved, even if pleaded will go to no issues. He cited the cases of AGALA vs. OKOSIN (2010) 10 NWLR (PT. 1202) 412 AT 436; EMEGOKWE vs. OKADIGBO (1973) ALL NLR 314 in support. Learned Counsel also contended that the respondent neither pleaded nor led evidence to show that the items of property subject matter of the dispute were jointly acquired by her and the deceased. In addition, Counsel said that the respondent neither pleaded nor showed in evidence that by her type of marriage, she is the sole survivor to her deceased husband’s estate having instituted this action in her personal capacity. Counsel urged this Court to resolve this issue in favour of the Appellants.

ISSUE TWO;

Whether the lower Court had the jurisdiction to make pronouncements as to the entitlement of items of property lying and situate outside its territorial jurisdiction?

Counsel submitted that the lower Court had no jurisdiction to adjudicate over items of property lying and situate outside its territorial jurisdiction and to make pronouncements of entitlement of ownership control and management. He referred Court to Order 2 Rule 1 of the High Court of Imo State (Civil Procedure) Rules 2008 which provides as follows:

All suits relating to land or any mortgage or charge on or any other interest or injury to land and also all actions relating to personal property detained or seized for any cause, shall be commenced and determined in the judicial division in which the land is situated, or the distraint or seizure took place.”

Against this background, Counsel drew attention to the locations of the properties involved in the instant suit, which included the shops at Onitsha at No. D 85 and M Line Head Bridge Onitsha and two Plots of land in Okpoko in Anambra State and a large portion of land behind the said duplex. Counsel also drew attention to a parcel of land at Umuezikeukwu Uba Umuaka a five-storey building at No. 12 Adofi Street, Onitsha. Counsel further submitted that by virtue of Order 2 Rule 1 of the High Court of Imo State (Civil Procedure) Rules 2008, the Respondent instituted the suit in the wrong jurisdiction which is outside the lex situs. Counsel urged Court to resolve Issue No. 2 for determination in favour of the Appellants.

ISSUE THREE:

Whether the lower Court lacked the requisite jurisdiction to determine this suit without conducting a pre-trial conference which is a pre-condition to the exercise of the jurisdiction by Court in this case?

The submission of learned Counsel on this issue is that the lower Court lacked the requisite jurisdiction to determine this suit without conducting a pre-trial conference which, he said is a pre-condition to the exercise of the jurisdiction by the Court. In putting this in another way, he said that the pre-trial Conference is a condition precedent to the exercise of such jurisdiction and that where the lower Court is found not to have the jurisdiction to hear and determine the relevant proceedings in this case, then whatever it had decided becomes null and void however well conducted or determined. Counsel said that from the records of appeal no pre-trial conference was shown to have been held.

In support of this argument, Counsel cited the cases of OKEREKE vs. YAR’ADUA (2008) 12 NWLR (PT. 1100) PG. 127 (PARAS. E – F) and MADUKOLU vs. NKEMDILIM (1962) 2 SCNLR 34 in support. Counsel argued that there is non-compliance with due process of law in this case. He referred Court to the case of SAUDE vs. ABDULLAHI (1989) 4 NWLR (PT.116) 387 AT 421 – 422 AT 422 where the Supreme Court held as follows:

There is non-compliance with due process of law when the procedural requirements have not been complied with or the preconditions for the exercise of jurisdiction have not been complied with in such a circumstance as in the other, the defect is fatal to the competence of the trial Court to entertain the suit. This is because the Court will in such a situation not be seised with jurisdiction in respect of the action.”

Learned Counsel referred to the provisions of Order 25 Rule 1(1) and (2) of the Imo State High Court (Civil Procedure) Rules 2008 which he said provides for the convening of a pre-trial Conference and that the said provisions clearly makes a pre-trial conference mandatory and not optional. He added that the legislation makes a pre-trial conference not only important but also a condition precedent to the exercise of the requisite jurisdiction of the Court. Counsel urged this Court to resolve Issue No. 3 in favour of the Appellants.

ARGUMENTS OF RESPONDENT’S COUNSEL. ISSUE ONE;

In answer to the submissions made by learned Appellants’ Counsel learned Respondents Counsel said that the Respondent remained the only wife of the deceased Victor Obioha, the management of whose estate is now in dispute. Counsel said that the Respondent in her statement of Claim averred that she was the only legitimate wife of her husband until his demise. He referred Court to page 33 paragraphs 3 of the records of appeal. According to learned Counsel, this averment was not denied by the Appellants, which means that the Appellants admitted that the Respondent was the only legitimate wife of her husband.

It was the submission of learned Counsel that the Court is entitled to rely on un-contradicted evidence as in the instant case. He cited the case of NIRCHANSDANI vs. PINHEIRO (2001) FWLR (Pt. 48) 1307 CA. He submitted in this correction, that that which is admitted does not require further proof by evidence, whether documentary or oral. See the cases of AGBANELO vs. UBN LTD. (2000) 4 SC (PT. 1) 233; AKPAN vs. UMOH (1999) 11 NWLR (PT. 627) 349 SC.

On the question of whether the Respondent needed to have established the nature of her marriage to the deceased Victor Obioha, learned Counsel submitted that the Respondent does not need to produce any documents to show that there was a valid and subsisting marriage between her and her husband until his demise. He referred Court to Section 125 of the Evidence Act, 2011, which provides thus; all facts except the contents of documents, may be proved by oral evidence. Counsel also cited the case of OGU vs. M. I. & M. C. S. Ltd. (2011) 8 NWLR (Pt.1249) 345 in support.

Learned Counsel argued that the subject matter of Suit No. HOR/149/2008 and of this appeal is management of the estate of the Respondents late husband and not the validity of the marriage entered into between the Respondent and her late husband. He emphasized that the suit at the lower Court and in this appeal are not grounded under the Matrimonial Causes Act in which the Respondent is saddled with the responsibility of pleading and proving the place where the Respondent celebrated her marriage with her late husband. Counsel added that the failure of the Respondent to plead the marriage certificate of the marriage between her and her late husband does not in any way nullify the marriage between the Respondent and her late husband or vitiate this action which was instituted to retrieve the late husband’s property from the Appellants. Counsel also argued that the facts of the marriage contracted under the marriage Act notwithstanding, the parties also contracted a valid marriage under native laws and custom.

According to learned Counsel, in the case of AYO vs. STATE (2010) All FWLR (530) 1377 at 1384 CA the Court of Appeal has said that, by the provisions of Section 2 of the Evidence Act, the words ‘wife’ and ‘husband’ means wife and husband of a monogamous marriage. It was further contended by Counsel that there was no law which bars the Respondent from instituting an action in respect of her late husband’s estate in her personal capacity being the only wife of her late husband and on behalf of her four children, who are the only children of her late husband. Counsel said that the Respondent has been in custody of the children and had been the only one taking care of the children’s welfare ever since the death of her husband.

It was also contended that where the Christian Marriage celebrated by the Respondent and her deceased husband does not comply with the provisions of the Marriage Act, that in itself is not enough reason to invalidate the marriage as the only act(s) that can invalidate the marriage is/are those contained in Section 33(2) of the Marriage Act which provides as follows.

But no Marriage shall, after celebration, be deemed invalid by reason that any provision of this Act other than the foregoing has not been complied with.” Counsel urged the Court to resolve issue one in favour of Respondent.

ISSUE TWO;

Learned Counsel sought to make a clarification in this case. He contended that the nature of the dispute between the parties in this case, was grounded solely on the management of the properties constituting the estate of the Respondents late husband and no more. He said that all properties owned by the Respondents late husband irrespective of where they are situated collectively constitute the estate of the Respondents late husband.

According to learned Counsel, what is in dispute in this suit is not the question of ownership of the properties of the estate of late Victor Obioha, the Respondents deceased husband, but the question of management of the properties, that is, who should be in charge or entitled to the management of the estate of late Victor Obioha. For this reason, learned Counsel argued that the trial Court therefore, had the jurisdiction to make pronouncements on those properties which are subject of the estate of Respondent’s deceased husband. In his arguments, Counsel said that the Appellants never at any time disputed the ownership of the said properties and therefore, need not be a subject of dispute in this case.

Learned Counsel also submitted that where the question of mode of marriage is not found to be Christian marriage that does not give the Appellants priority in respect of the estate of the Respondent’s deceased husband over the Respondent and her children. He cited the case of OBUSEZ vs. OBUSEZ (2007) 10 NWLR (PT. 1043) in support. Counsel urged this Court to resolve this issue in favour of the Respondent.

ISSUE THREE;

It was the contention of learned Respondent’s Counsel that

a pre-trial conference was conducted by the lower Court. He said that at the close of pleadings, pre-trial papers were exchanged by both parties to the suit at the lower Court. In compliance with Order 25 Rules 1(1), (2) & (3) of the Imo State High Court (Civil Procedure) Rules 2008, Counsel said that the claimant’s (now Respondent) Counsel applied for pre-trial papers to be issued and same were issued. He drew attention to pages 112-115 of the Printed Records where the application for pre-trial forms and the pre-trial forms issued are contained. Learned Counsel also said that the defendants (now Appellants) answers to the pre-trial questions are contained at page 128 of the Records of Appeal.

Counsel further said that at the trial Court, pre-trial papers were duly issued and answers to pre-trial questions were filed. He emphasized that there was nothing that was meant to have been done at the pre-trial conference that was left undone. Learned Counsel told Court that the matter was fixed for pre-trial conference on the 21st day of 2009. But on that day Appellants Counsel brought an application challenging the jurisdiction of the trial Court to entertain the matter which then led to the adjournment of the matter as the claimant (now Respondent) Counsel needed time to react to the application. He referred Court to page 204 of the Records of Appeal. According to Counsel, Ruling on the application was given and pre-trial was fixed for a later date and concluded before the matter proceeded to hearing.

Learned Counsel said that one of the applications made by the defendants’ (now Appellants) Counsel in his pre-trial answers was that the matter proceeded to full hearing or trial in order to determine the same issue, as contained at page 128 of the Records of Appeal, no. 12. Counsel said that having complied with the provision of Order 25 Rule 1(1) and (2), and every other things necessary, the matter was then fixed for hearing on a date agreed upon between the parties. Counsel submitted in the alternative that the absence of pre-trial conference does not rob the Court of its jurisdiction. He said that to insist on the issue, the way the Appellants are doing is to rely on technicality in this appeal which the superior Courts have often frowned against in a plethora of decided cases. Counsel urged this Court to resolve this issue in favour of the Respondents.

RESOLUTION OF APPEAL;

The need to give a resume of the facts of this case cannot be over emphasized at least to provide the necessary background required for a proper understanding of what transpired between the parties who are of the same family and probably led to the sordid turn of events in the matter before Court. The Respondent herein presented herself an only wife of the deceased Victor Obioha. The marriage between the Respondent and the deceased produced four (4) children, three (3) boys and a girl. The girl is the first born of the family.

Prior to the death of her late husband the couple had a misunderstanding which was said to have been escalated by the Appellants and their family members who are all relations of the deceased Victor Obioha. The Respondent was said to have been forced to vacate the matrimonial home due to the antics and overbearing attitude of the Appellants and other members of the family. All efforts made by the Respondent in order to return to her matrimonial home were said to been thwarted by the Appellants. It is also the Respondent’s story that she was a nursing mother when she was pushed out of the matrimonial home by the Appellants as she had just given birth to the last child of the family who was just under a year old at the time.

The deceased, that is the Respondent’s late husband later fell sick and died after several treatments to no avail and of a time when the Respondent and her children were still literally on “exile”. At the death of the Respondent’s husband the Appellants were said to have confiscated the deceased’s properties and monies of the Respondent’s late husband including the Respondent’s and her children’s personal belongings in the couple’s matrimonial home at Onitsha. The Appellants were said not to have stopped at that as they also accused the Respondent of being the person responsible for the death of her deceased’s husband.

Consequently, the Respondent took out a civil action against the Appellants at the Orlu Division of the Imo State High Court in Suit No. HOR/149/2008 seeking the following relief:

a. A declaration of Court that a clear examination be carried out to prove the cause of death of the plaintiff’s husband before burial.

b. An Order that all properties of the deceased with the only legitimate wife (plaintiff) be released to the plaintiff and the children.

c. A perpetual injunction restraining the defendants, their agents, privies, cohorts from interfering, confiscating the properties of the deceased without recourse to the deceased legitimate wife.

The suit was instituted prior to the coming into effect of the Imo State High Court (Civil Procedure) Rules, 2008. And the parties were appropriately on the 19th day of January, 2009 ordered to comply with the new rules. See page 169 of the Records of Appeal. Parties eventually led evidence at the trial Court based on their new processes filed in compliance with the new rules and in obedience to the order of Court. At the conclusion of trial, the Court entered judgment in favour of the Respondent which said judgment the Appellants were dissatisfied with by lodging this appeal in this Court, to have the judgment of the High Court of Justice, Imo State sitting at Orlu given on the 21st day of June, 2010 set aside.

However, on the part of the Appellants, the Respondent is mostly seen as a villain, who was steeped in diabolism and all sorts of wicked acts which eventually led to the death of the said Victor Obioha, her husband. The Respondent was said to have deserted the deceased Victor Obioha shortly before he died and that she was high handed and cruel not only to the relations of her deceased husband but also to her children born in the union of the Respondent and the deceased. The Appellants have therefore come before this Court to contend that the Respondent was not married to the deceased Victor Obioha under the Marriage Act. As far as the Appellants were concerned, the marriage was merely blessed in the Church and not contracted in accordance with the Marriage Act.

In the judgment of the lower Court contained at 168 to 184, it is instructive to note that the learned trial Judge identified the operational statement of claim of the Respondent as the one filed on the 12-2-2009 but dated 28-1-2009. See page 168 of the printed records of proceedings at paragraph 3 line 7. This process is contained at pages 33 to 35 of the records of proceedings. It is rather worrisome to note, that at the lower Court, the issue of the form of marriage contracted between the Respondent and the deceased husband was never given all the prominence the issue seem to have now attracted here on Appeal. All that the Respondent as Plaintiff before the lower Court said on the issue was only a fleeting mention in the passing at paragraph 10 of the said statement of claim when she deposed as follows;

“The Plaintiff had commenced the application for the Administration of Estate of her husband as required by law in a monogamous marriage”.

On the part of the Appellants, the operational statement of defense in the Court’s record is the one contained at pages 47 to 48 of the records of proceedings. The said statement of defense is dated and filed on the 19-3-2009. It is also instructive to note once again that all that was said about the Respondent’s form of marriage with the deceased Victor Obioha is contained at paragraph 1 where the Appellants joined issues with the Respondent when they averred as follows;

“The claimant is not a wife to the late Victor Obioha as at the date of his death having deserted him without complaint or remorse and enjoyed living as a ‘feme sole’. They however had wedded under the customary law, had the church bless that marriage but not under any statute,”

The findings of the learned trial Judge on the issue are as interesting and as it’s instructive. See pages 177 to 178 of the records of proceedings where the Court said;

“In this case, the parties are agreed on the following fact, namely;

1. That the marriage between the deceased and the claimant was a Christian Marriage.
2. That while the marriage lasted for 11 or 12 years or more, that the deceased did not marry another woman or wife.

3. That the said Christian Marriage was celebrated on 12th April, 1997, while the deceased died in August 2008.

4. That the deceased had estates both at their viilage Umuonyiriegbe Uba Umuaka in Njaba Local Government Area of Imo State and Onitsha in Anambra State.

5. That the marriage was survived by four children three of whom are males.
6. That the claimant and not the defendants has been in the custody of the said children even before the death of the claimant’s husband.

7. That the DW2 (the second defendant in this case)has on his admission been controlling and managing the said estates of the deceased since the death of his brother and that he had not known the situation of his said deceased’s brother’s children since then.

The question whether the above first three sets of facts is demonstrative of monogamous marriages, readily answered by me in the affirmative. I also add that they connote equally an election outside the customary cleavages by the deceased in relation to his personal estate. In the case of SALAMORU COKER & 5 ORS vs. ALFRED BABATUNDE COKER & ANOR vol. 17 NLR 55, the Court held thus; ‘that the intestate estate of a native who contracts Christian marriage or civil marriage is removed from operation of native law of succession and brought under common law.’ And again, in the case of OLOWU vs. OLOWU (1985) 3 NWLR (PT. 13) 372, the Supreme Court stated thus; ‘where a person previously subject to customary law undergoes a marriage celebrated either by Christian rites or according to English law or in accordance with the provisions of the marriage Act he is deemed to have rendered himself subject to English law for the purpose of distribution of his estate upon intestacy’.

In the light of all the above authorities, the conclusion I reach on this issue is that this case is not one under customary law and therefore that a case of desertion and divorce as made by Counsel to the defendants do not arise for consideration and so the case of NWANGWA vs. UBANI Supra is inapplicable to this case.”

I am simply unable to disagree with the learned trial judge on this issue. The Appellants cannot in all sincerity claim not to know that the status of the Respondents marriage with her deceased’s husband when from their own showing, at paragraph 7.2.3. of the Appellants’ brief of argument, they acknowledged that the trial judge based his judgment on the evidence led by the Respondent as to the type and status of the marriage she contracted with the deceased on her evidence given on facts at page 176 of the records of proceedings where she said;

I wedded at the Church on the 12th April, 1997 being a Saturday and on Monday 14th April, 1997 my husband took me to the marriage registry at Kano State where I signed documents relating to our marriage. She added that she went to the said marriage registry only with the husband”.

It is, however, interesting to note that the only point of observation and probably of disagreement raised by Appellants’ Counsel to this piece of evidence was that it was evidence led on facts not pleaded. Counsel argued that a plaintiff in an action must call evidence in support of his pleadings and cited a couple of decided cases in support of this point. But the question to address here is whether the piece of evidence given on this issue was indeed not pleaded as claimed by learned Appellants’ Counsel? It would be recalled that at the beginning of the Courts exercise on this issue, the Court referred to the fact that the parties joined issues on the question of the form of marriage contacted between the Respondent and her deceased spouse, where the Respondent said at paragraph 10 of her statement of claim that hers was a monogamous marriage with the deceased and then at paragraph 1 of the statement of defense where the Appellants said that what the Respondent had going for her was a customary law marriage irrespective of the fact that the couple had first taken themselves to Church for a marriage blessing.

If these do not constitute pleadings on the facts, I wonder what else does. Appellants Counsel seem to have forgotten that under the rules of pleadings parties do not plead evidence but just the facts. The Supreme Court in the case of OJUKWU vs. YAR ADUA (2009) 12 NWLR (PT.1154) 50 per TOBI, JSC (as he then was) had this to say on the issue;

Facts are the fountain head of pleadings as they are the basis of pleadings. That gives rise to the definition of pleadings as statements of fact. A party cannot lead evidence on a fact not pleaded. See OKPALA vs. IHEME (1989) 2 NWLR (PT. 102) 208; SPDC LTD vs. NWAWKA (2003) 6 NWLR (PT. 815) 18.

The primary function of pleadings is to define and delimit with clarity and precision the real matter in controversy between the parties upon which they prepare and present their respective cases and upon which the Court will be called to adjudicate between them. See ATOLAGBE vs. SHORUN (1985) 4 S.C. (PT. 1) 250.”

What did transpire in the instant case is that the Respondent stated in her paragraph 10 that her marriage with the deceased husband was a monogamous marriage, short and simple and when the Appellants filed their statement of defense, they joined issues with the Respondent by saying that her form of marriage was customary marriage. That was why when she gave her evidence on the issue she took her time and the opportunity of her evidence as required in saying why her marriage was monogamous and not customary marriage. I cannot see myself faulting the findings and conclusions made by the learned trial judge on the issue. To this end, the issue number one is resolved in favour of the Respondent.

In respect of the issues raised in issue two, learned Appellants Counsel contended that the lower Court had no jurisdiction to adjudicate over items of property lying and situate outside its territorial jurisdiction and make pronouncements of entitlement of ownership, control and management. Learned Respondents Counsel on its part had argued that the present action between the parties is not about determining the issue of ownership of the properties involved in the estate of the deceased Victor Obioha but about the management of these properties. It is on account of this argument that it becomes necessary to observe that the first relief claimed by the Respondent herein, at paragraph 14 (a) of the statement of claim is for a declaratory order seeking the placement of the estate of the deceased Victor Obioha in Respondents hands. For the avoidance of doubt, the said paragraph 14(a) is reproduced as follows;

“A Declaration that the Plaintiff by virtue of her marriage to the deceased and sole partner in the acquisition of all property that constitute the estate of the husband is entitled to the control, management an application for letter of administration.”

In any case, the attitude of this Court in respect of issues of this nature is that wherever the Respondent applied to for the grant of a letter of Administration is usually of no consequence. This Court, per AUGIE, JCA had this to say in the case BALOGUN V. AGBARA ESTATES LIMITED (2007) LPELR-8794 (CA);

It is well settled that the High Court of a State has jurisdiction to entertain an action arising from the administration of the estate of a deceased person who died intestate notwithstanding that the Letters of Administration is in respect of properties within the State while the Estate includes properties outside the State- see SALUBI vs.NWARIAKU (2003) 7 NWLR (PT. 819)426; AMOBI vs. NZEGWU (2005) 12 NWLR (PT. 938) 120 & OKONYIA vs. IKENGAH & ORS (Supra).”

Arising from the forgoing, the issue two is also resolved in favour of the Respondents.

On account of the third issue raised for the determination of the Court, Appellant had contended that the lower Court failed to conduct a pre-trial Conference as required under the Rules of Court, precisely the Order 25 Rules 1(1), (2) & (3) of the Imo State High Court (Civil Procedure) Rules 2008. According to learned Counsel the convening of a pretrial Conference is a condition precedent to the hearing of any suit filed in Court and that the failure to so conduct one robs the lower trial Court of the jurisdiction to hear the case.

Counsel cited the locus classicus of MADUKOLU vs. NKEMDILLIM (1962) 2 SCNLR 341 and a host of other cases in support of his argument. On the part of the Respondent, learned Counsel told Court that the lower trial Court complied with the provisions of Order 25 Rules 1(1), (2) & (3) of the Imo State High Court (Civil Procedure) Rules 2008 as the Court duly convened a pretrial conference and referred Court copiously to portions of the Court’s record on the issue and which I have no cause to doubt. However, if it is to be assumed that there was no compliance and that a pre-trial conference was indeed not convened, what becomes of the issue?

The settled position of the law is that non-compliance with rules of Court will not necessarily result in the setting aside of a judgment of Court especially where it is adequately demonstrated that copious steps were taken by the party complaining about the breach of the rules which he has since waived.

I have carefully examined the processes in this proceedings and did not see anywhere the Appellant as Defendants raised objections in protest against non-compliance with the said Order 25 Rules 1 (1),(2),& (3) of the Imo State

High Court Rules. In raising his objections belatedly on the issue, learned Appellants’ Counsel did not state whether by the non-compliance complained about any of the parties is prejudiced in any way. What should probably be borne in mind is the fact that the pre-trial conference is a recent addition to the regime of laws governing the new set of civil procedure rules of the High Court system in Nigeria, and that it is only meant to speed up the hitherto comatose civil trials which were conducted under rules which had outlived their usefulness due to failures to keep pace with the fast tempo of modern day commercial and other civil transactions.

Besides all of these, the breach of a rule of practice can only render a proceeding irregularly conducted and not a nullity. See the case of GAMBARI vs. BUHARI (2009) ALL FWLR (PT. 479) 458 AT 501.

In the final analysis the issue three is also resolved against the Appellants and this Appeal is accordingly dismissed with cost assessed at N100,000.00 in favour of the Respondent. The judgment of the learned trial Judge, L. C. Azuama J, of the High Court Justice of Imo State sitting, at Orlu and delivered on the 21-6-2010 is hereby affirmed.

AGUBE, JCA

I had the privilege of reading in advance the judgment delivered by my brother, Frederick O. Oho, JCA.

The issues that came up for determination in this appeal were adequately considered and resolved in the lead judgment. I have nothing else useful to add. In that respect, I also dismiss the appeal as lacking in merit.

I abide by the consequential orders made therein.

MBABA, JCA

I had the privilege of reading the lead judgment by my learned brother, F.O. Oho JCA, resolving the issues against the Appellants.

I agree completely with his reasoning and conclusions, which in my view, are quite illuminating and in consonance with the law, in the circumstances. I too dismiss the appeal and abide by the consequential orders in the lead judgment.