Mrs Scholastica Anionwu & Ors. V. Nnanyelugo Onuora Anionwu & Anor (2009)

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AMIRU SANUSI, J.C.A.

This is an appeal against the decision of High Court of Justice, Anambra State (“the lower court” for short) delivered on 15th January, 2007 (Coram Amaechina J.). By an amended statement of claim which supersedes the Writ of Summons, the present appellants/cross-respondents as plaintiffs at the lower court, instituted an action against the present respondents/cross-appellants as defendants thereat, claiming against the defendants jointly and severally, the under-mentioned declaratory and injunctive reliefs as reproduced below:-

“a) A declaration that both by Onitsha Custom and English Law, the 1st defendant and late Ononenyi Sunday Anionwu can not marry Mrs. Nneka Udensi (Nee Okolonji) for late Ambassador Lawrence Odiatu Victor Anionwu who died on the 12th day of June 1980 and that the alleged marriage is null and void and of no effect whatsoever..

b) A declaration that it is repugnant to public policy, good conscience and natural justice to hold that a man who died in 1980 married a woman many years after his death.

c) An order of court that Mrs. Nneka Udensi (Nee Okolonji) by virtue of the acts performed by the 1st Defendant and late Onunenyi Sunday Anionwu is married to either of them, and not to late Ambassador Lawrence Odiatu Victor Anionwu.

d) Perpetual Injunction restraining the 2nd Defendant, her agents, privies and .assigns from parading herself, or presenting herself as the wife of late Ambassador Lawrence Odiatu Victor Anionwu or from entering or attempting to enter the L.O.V. Anionwu family house situate at No. 86, Awka Road, Onitsha or any other property exclusive to the plaintiffs.

e) Perpetual Injunction restraining the 1st Defendant, his agents, privies, assigns, workmen or any person or persons whomsoever from according the 2nd Defendant any rights or privileges as the wife of Late Ambassador Odiatu Victor Anionwu.”

At the lower court, the 1st appellant was the first plaintiff having replaced her husband the 1st plaintiff, who died during the trial. Originally, there were three defendants that were sued, who included the present two respondents when the suit commenced at the lower court. The other defendant who used to be the 2nd defendant, one Ononunyi Sunday Anionwu died and his name was struck out by the lower court on 5/5/2005. The present 2nd respondent who used to be the 3rd defendant then became the 2nd defendant at the lower court after the death of Sunday Anionwu who was before his death, the 2nd defendant.

Briefly put, the facts of this case as could be gathered from the pleadings by parties and the reliefs sought are that the first plaintiff/appellant claimed that the 2nd defendant was married for her former husband and that after the said husband died, the 2nd defendant/respondent had since then been parading herself as a wife to the Late L.O.V. Anionwu Esq. On the other hand, the two respondents as defendants claimed that the 2nd defendant is the only wife to the late L.O.V. Anionwu who had married her in 1974 during his life time and denied that there was any marriage contracted by anybody under any customary law after 1974 to date. Two witnesses were called by each party to the case and several documentary exhibits were tendered in evidence. In the end, the learned trial judge found that the plaintiffs failed to prove their claims through credible evidence and dismissed their entire claims. With regard to the case for the defence, the trial court also held that the defendants failed to lead credible evidence to prove the subsistance of any valid customary marriage between the 2nd defendant and late Ambassador L.O.V. Anionwu. Moreso, the court held that the defendants did not make any counter claim in the suit.

Dissatisfied with the judgment of the lower court dated 15th January 2007, the plaintiff appealed to this court vide their Notice of Appeal dated 28th February 2007. Similarly, the two defendants also cross-appealed against the said lower court’s judgment vide their Notice of Cross-Appeal dated the 28th of March 2007.

Both parties have in compliance with rules of this court, filed their Briefs of Argument in both the appeal and cross-appeal. I shall first of all consider the appeal before dealing with the cross-appeal later.

The appellants herein filed joint brief of argument on 18/2/2008 dated same day. They also filed Appellants’ Reply Brief on 4/4/2008 which I will refer to later. The two respondents’ Joint Brief of argument dated 23/3/2008 was filed on 25/3/2008. In the appellants’ brief, two issues for determination were formulated. The issues are:-

(i) Whether the plaintiffs on a complete assessment and evaluation of the evidence presented by them to the court, have proved their case satisfactorily and on the balance of probabilities?

(ii) Whether the learned trial judge was right in dismissing the suit after having found as a fact that there was customary law marriage existing between the 2nd Defendant and late L.O.V. Anionwu Esq.?