Casimir Odive V. Nweke Obor & Anor.(1974)

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O. ELIAS, C.J.N.

This is an appeal against the ruling of Agbakoba, J., in Suit No. 0/5/1972 given in the Onitsha High Court on June 6, 1973, and in which the learned trial Judge upheld a preliminary objection raised by the counsel for the defendants regarding the competence of the court to hear and determine the claim as laid. In the action, the plaintiff claims against the defendants, a man and a woman, jointly and severally:-

(1) An order of the court compelling the defendants to return to the plaintiff the plaintiff’s children, namely, Regina Ukamaka Odive, Benedette Ebelechukwu Odive, John Muoto Odive and Sussanna Chikodili Odive.

(2) 900pounds damages for the loss of the services of the aforesaid four children as specified hereunder:

(i) 400pounds for the loss of the services of Regina Ukamaka Odive.

(ii) 200pounds for the loss of the services of Benedette Ebelechukwu Odive.

(iii) 200pounds for the loss of the services of John Muoto Odive.

(iv) 100pounds for the loss of the services of Sussanna Chikodili Odive.

When the case came up for hearing, pleadings had been ordered by the court and duly filed and delivered by both parties. The relevant facts are that the plaintiff averred in his Statement of Claim that in 1949 he was married to the 2nd defendant according to customary law, followed in 1950 by a marriage between the same parties under the Marriage Act, Cap. 115 of the Laws of Nigeria. The plaintiff also stated that all the four children born to him by the 2nd defendant were the issues of the marriage. Counsel for the defendants raised a preliminary objection in the following terms:

“I wish to raise a preliminary objection with respect to the claim –

1. Return of children. It ought to be by way of petition since marriage under the Act is foundation of the claim.
2. An action per quod servitium amissit cannot be joined to claim for return of children.”

The learned trial Judge, after listening to both sides in respect of the objection, gave an adjourned ruling on June 6, 1973, in which he upheld the objection and struck out the case.

Against this ruling, the plaintiff/appellant has appealed on the following two grounds which were the only ones argued before us out of the four that were filed. These grounds are:

“(1)(a) That the learned trial Judge erred in law in striking out the whole suit despite his finding that the plaintiff/appellant could sue for the loss of services of his children and when the only point for decision before him was whether the action could be instituted by Writ of Summons.

(b) That even if the first arm of the claim should be brought by petition, the learned trial Judge was wrong to strike out both the first arm and the second arm of the claim whereas the second arm of the claim – damages for loss of services – could properly be instituted by Writ of Summons.