Dominic Okoro V. Margarete Okoro & Anor (1998)

LawGlobal-Hub Lead Judgment Report

UBAEZONU J.C.A. 

The Appellant, in the lower court claimed as follows;

“(a) Return of the wife – the 1st defendant and the child whose pregnancy she was carrying when she was enticed away from her matrimonial home.

(b) Special damages- N280,000.00 being cost of his property removed by the defendants.

(c) General damages – N1,000.000.00 for depriving him of the use of the property and for enticement of his wife – the 1st defendant.”

The appellant however failed to file his statement of claim within time. In consequence, the respondent by a motion dated 30th January, 1996 prayed the court for an order dismissing or striking out the suit. By a motion dated 5th February, 1996, the appellant prayed the court for an Order for extension of time within which to file his Statement of claim. Both motions came up for hearing at the lower court on 7th February, 1996. The learned trial Judge, M.U. Edozie J., heard the motion for dismissing or striking out the suit. She dismissed the suit.

Dissatisfied with the judgment/ruling, the appellant has appealed to this court on two grounds of appeal. He also filed three issues for determination as follows:-

“1. Was the Learned Trial Judge correct in hearing and determining a motion to dismiss/strike-out the suit first when there was in court a motion for extension of time within which to file the statement of claim?

2. Was there fair-hearing when the learned trial Judge after hearing the applicant in a motion to dismiss/strike-out the suit for want of deligent prosecution proceeds (sic) to judgment/ruling without calling on the respondent to speak inspite of the fact that counsel for the respondent was there.
3. Would it be proper interpretation of section 236 or the Constitution of the Federal Republic of Nigeria 1979 as amended to construe that the High Court has no jurisdiction over customary Law marriages in the absence of any ouster provision 25 of the said Constitution.”

The appellant argued issues 1 and 2 together in his brief. Learned counsel contended that since there were two motions before the court – one for dismissal or striking out the suit for want of deligent prosecution, the other for extension of time within which to file the appellant’s statement of Claims, the court ought to have heard the motion for extension of time first. On the contrary, the court heard the motion for dismissal or striking out of the suit and dismissed the same while the motion for extension of time to file the statement of claim was still pending. He refers to and relies on Abiegbe v. Ugbodime (1973) 1 S.C. 133.

Learned counsel also complains that the appellant was not given a hearing even though his counsel was present in court. He contends that the failure to give him a hearing was a breach of the principle of fair hearing enshrined in S.33 (1) of Nigerian Constitution.

On issue No.3, learned counsel argues that the learned trial Judge suo motu raised and determined the issue of jurisdiction. The court held that it had no jurisdiction over customary law marriage. Counsel contends that the suit before the court was one of the tort of enticement. The issue before the court, counsel argues, was not a petition for dissolution of a customary law marriage.

It is submitted that under S.236 of the Nigerian Constitution the High Court has unlimited jurisdiction save as limited by S.230 of the said Constitution – See Bronik Motors Ltd. v. Wema Bank Ltd. (1983) 1SCNLR 296; Sale v. Nigeria Cotton Board (1985) 2 NWLR (Pt.5) 17; Agbaje v. Adelekan (1990) 7 NWLR (Pt. 164) 595. Learned counsel argues that the jurisdiction of the High Court can only he ousted by express legislation. He contends that the case before the court was one of enticement. It is submitted that under SS 17 and 18 or the Magistrates Court Law and S.13 of the High Court Law Edict No. 16 of 1987, Laws of Anambra State applicable in Enugu State, the High Court has concurrent jurisdiction with the Magistrate’s Court in matters relating to Customary Law Marriages.

The respondents in this appeal failed to file a respondent’s brief. On the 23rd September, 1997 the appellant obtained leave of the court to argue the appeal on the appellant’s brief only. When the appeal came up for hearing on 17th November, 1997 learned counsel for the appellant adopted his brief and urged the court to allow the appeal.

Issues 1 and 2 argued together are sufficient to dispose of this appeal.