Miss Nkiru Amobi (a.k.a.) Nkiru Nzegwu V. Mrs. Grace O. Nzegwu & Ors (2004)

LawGlobal-Hub Lead Judgment Report

MUHAMMAD, J.C.A.

This is an appeal against the judgment of the Lagos State High Court, delivered on 22nd March, 2001, in suit No. ID/432/99. The hardly disputed facts of the case that brought about the appeal are hereunder supplied.

Engineer Theophilus I. O. Nzegwu got married to Grace O. Nzegwu, the 1st respondent, on 28th June, 1958, in London. 2nd and 3rd respondents are the surviving issues of the marriage. The marriage broke down in the course of time. By their petition and cross petition in suit No. 0/16D/95, parties eventually asked for the dissolution of the marriage. The Anambra State High Court, sitting at Onitsha, granted a decree nisi dissolving the marriage. This was on 30th September, 1996.

Before then, Engineer Nzegwu had purportedly married the appellant, under native law and custom on 7th July, 1995. The purported marriage was solemnized and celebrated under the Act in Lagos on 23rd October 1996. Appellant did not know of the existence of the 1st respondent, the estranged wife of Mr. Nzegwu that the 1st respondent then was.

Engineer Theophilus I. O. Nzegwu died intestate, on 31st October, 1996. He died in Onitsha, Anambra State. In 1998, respondents applied to the Probate Registry of the Lagos State High Court for letters of administration. Appellant entered a caveat to the application. Consequently, the respondents as plaintiffs sued the appellant as defendant at the Lagos State High Court, praying for the court’s “order directing the grant to them of Letters of Administration of the estate of Engineer Theophilus I.O. Nzegwu”.

Pleadings were filed and exchanged. Issues were resultantly settled. The matter proceeded to trial. The respondents were obliged the relief they claimed by the court in its decision dated 22nd March, 2001. The court further directed “that the State Attorney General and Commissioner for Justice/DPP take appropriate step to cause the arrest of the defendant for committing an offence under S. 39(1) of the Matrimonial Act to which she herself admitted in this proceeding as per exhibit A and for her to be properly charged before the appropriate court with immediate effect, or the plaintiff’s counsel lodge a complaint with the Police and cause the defendant to be arrested and charged to court for flagrantly committing an offence under S. 39 of the Marriage Act.”

The appellant being dissatisfied with the lower court’s judgment, has appealed to this court on a notice containing five grounds.

Parties have filed and exchanged briefs of arguments. Same were adopted and relied upon at the hearing of the appeal.

The appellant has formulated four issues as having arisen for the determination of the appeal. The issues are: –

“(i) Whether the High Court of Lagos State has the jurisdiction to grant Letters of Administration to administer the estate of Late Engr. Theophilus I.O. Nzegwu who hailed from, lived and died in Onitsha, Anambra State.

(ii) Whether the learned trial Judge was right when she held that the 1st respondent, as against the appellant, was entitled to Letters of Administration over the estate of Engr. Theophilus I.O. Nzegwu (deceased) and in exercising her discretion to grant Letters of Administration to the 1st respondent.

(iii) Whether the learned trial Judge was right or had the jurisdiction, in a civil matter, to order that the appellant be “arrested”, “charged”, “tried” and “convicted” for bigamy.

(iv) Whether the learned trial Judge was right in dismissing the appellant’s counter-claim.”

Flowing from the amended notice of appeal as well, the respondents consider only three issues to have arisen for the determination of the appeal. The three issues read: –