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: –
“1. Where the respondents entitled, upon the material before the High Court, entitled to a grant of Letters of Administration to the estate of the deceased?
- Did the decree nisi pronounced by the Onitsha High Court in suit No. 0/16D/99, effectively dissolve the marriage between the first respondent and the deceased, in the light of the death of the deceased before the decree could become absolute?
- Was the appellant’s counterclaim properly dismissed, in the circumstances of the case?”
Under appellant’s 1st issue for determination, counsel submits that the fact that Engineer Theophilus, I.O. Nzegwu had hailed, lived and died in Onitsha, Anambra State, is not a disputed fact. Both sides are agreed on the fact. Reference was made to page 19, lines 18-19; page 22 line 22 of the record of appeal where the fact of death of Mr. Nzegwu was given in evidence by both the 1st respondent and the appellant respectively. The lower court’s finding in respect to this fact at page 45 of the record of appeal has also been alluded to. Learned Counsel submits that the court had no jurisdiction to issue to the respondents Letters of Administration of the estate of the deceased. Instead, it is the Anambra State High Court that had the jurisdiction to grant the relief sought for same to be resealed by the Lagos State High Court in respect of properties in Lagos. Counsel buttresses his contention with the cases of Asaboro v. Aruwaji (1974) 6 SC 31 at 49 and Lijadu v. Franklin (1965) 1 All NLR 110.
It is further argued that the relief the respondents asked from the court was not specific. The court at page 57 of the record found that the relief was neither in respect of real nor personal properties of the deceased. In spite of the finding, appellant’s counsel contends, the court wrongly proceeded to oblige the respondents. The respondents must specify in respect of which property, real or personal, the Letters of Administration was being asked for. Failure to so specify was fatal and disentitled the respondents from the grant they got. The decisions in Ademola v. Probate Registrar (1971) 1 All NLR 155 at 165; Erewa v. Idehen (1971) 1 All NLR 192 at 202-204; Ugu v. Tabi (1997) 7 NWLR ((Pt.513) 368 and Attorney-General Ondo State v. Attorney-General Ekiti State (2001) 17 NWLR (Pt.743) 706 at 790 were cited by counsel and relied upon. Counsel urged us that since the lower court had proceeded on a matter without the necessary jurisdiction, its decision has to be nullified.
Regarding appellant’s 2nd issue, learned Counsel submits that appellant both in her pleadings and evidence at the lower court did concede that 2nd and 3rd respondents are entitled to the grant of Letters of Administration. Appellant’s real quarrel was with 1st respondent’s right to such a grant. The lower court had found at page 42 – page 43 of the record that 1st respondent’s marriage to the deceased had been annulled and appellant was married to the latter under the Act on 23rd October, 1996. The court’s finding that 1st respondent was the only surviving legal spouse of the deceased was what automatically entitled 1st respondent to the grant of the Letters of Administration. And the finding was wrong. If the finding was otherwise, it still could not be the basis of an automatic grant. The court still had the duty to consider the competing rights and claims of parties to the application, which in the instant case it did not, to decide whom to oblige or refuse the grant of the Letters of Administration. All facts, Counsel argues, placed the appellant at a better stead than the 1st respondent. The lower court was accordingly wrong to have decided in favour of the 1st respondent. Inter alia reliance was put on Obusez v. Obusez (2001) 15 NWLR (Pt.736) 377 at 391 and 398; Okon v. Administrator General Cross River (1992) 6 NWLR (Pt.248) 473 at 485. Learned Counsel emphasized the fact that the decree – nisi dissolving the marriage between the 1st respondent and the deceased was brought about by the petition and the cross petition filed by the deceased and the 1st respondent. The decree became effective soon after it had been ordered. None of the parties that had consented to its issuance could have resiled. 1st respondent at the time of the application for the grant of the Letters of Administration, therefore, was without the necessary right and standing to apply for the issuance of same. With the death of the deceased the marriage could not, in any event, be restored. Learned Counsel commends the following: Okoro v. Ntui Ogara (1964) 8 NLR 99; Savage v. Sarrough (1937) 13 NLR 141; Edozien v. Amadi (1962) 1 SCNLR 405, (1962) 1 All NLR 256 at 558 and Toriola v. Williams (1982) 7 SC 27 at 48-49 and Asere v. Asere (1991) 6 NWLR (PU97) 316 to support his contention.
Under the 3rd issue, learned appellant’s Counsel referred to pages 56-58 of the record where the court ordered the arrest and prosecution of the appellant against the background of respondents claim and appellant’s counter-claim respectively and submits that the passages read together constitute a conviction of the appellant in a civil matter. By the decisions in NITEL Plc. v. Awala (2002) 3 NWLR (Pt.753) 1 at 13, Fawehinmi v. IGP (2002) 7 NWLR (Pt.767) 606; and Arowolo v. Ifabiyi (2002) 4 NWLR (Pt.757) 356 and S. 138(1) of the Evidence Act, the lower court was not in a position to make the pronouncement it did.
In arguing the 4th issue for determination, appellant’s Counsel contends that appellant’s counter-claim was dismissed on two grounds. Firstly, the court held that proof on the basis of which the counter-claim was to be determined was lacking. Secondly, the court further concluded that the counter-claim was irrelevant to the suit before it. At page 20 of the record however, counsel further submits, 1st respondent admitted in her evidence in chief to have collected the sum of N260,000.00 as rent on the property at 147 Ogunlana Drive, Surulere, instead of N520,000.00 the appellant was claiming. Since appellant had proved the lesser sum, she was in law, entitled to judgment for the lesser sum. Yet the court declined to find for the appellant. Instead and without hearing, the counter-claim was dismissed. At the worst, the counter-claim having not been heard on the merits was to be struck out. Appellant’s counsel relies on Ceekay Traders Ltd. v. Gen. Motors Co. Ltd. (1992) 2 NWLR (Pt. 222) 132 at 162.
On the whole we are urged to allow the appeal.
Learned Senior Counsel for the respondents addressed us orally at the hearing of the appeal in amplification of his written arguments. He contends, under their first issue, that legislation provides the basis upon which any person may lawfully deal with the property of a deceased person whether same is personal or real. The Administration of Estates Law, Cap. 3 Laws of Lagos State is applicable to the instant case with the death of Mr. Nzegwu, who had resided in Lagos intestate. Appellant’s argument that since the deceased had lived and died in Onitsha, a place outside the jurisdiction of the lower court, the court lacked the jurisdiction to try the matter thereby making the action thereat incompetent, is therefore, untenable. It is further contended that the argument is being raised for the first time and without the necessary leave of this court. The ground and the issue formulated thereon must accordingly be struck out. The decisions in Adesokan & Ors. v.Adetunji & Ors. (1994) 5 NWLR (Pt.346) 540 at 575-6 and Temco Engineering & Co. Ltd. v. Savannah Bank of Nigeria Ltd. (1995) 5 NWLR (Pt.397) 607 at 618. It is submitted support respondents counsel in this regard. In the least event, exhibit C, a document tendered by the appellant, learned Senior Respondents Counsel further argues, gives the address of the deceased as Plot 1303A Akin Adesola Street, the same address given by the 1st respondent in the course of testimony as her own address too. Since the deceased, by the only address available to the court, had resided and owned property in Lagos, within the jurisdiction of the lower court, the action instituted by the respondents for the grant of Letters of Administration regarding such property within Lagos was competent.
In further arguing respondent’s first issue, learned Senior Counsel submits that the lower court, by virtue of S.22 of the Lagos State Administration of Estate Law, is empowered to grant Letters of Administration in respect of real or personal estate of a deceased person. The court, it is submitted, had acted within the law in granting the respondents the relief they asked. Learned Senior Counsel contends that the cases of Ademola & Ors. v. Probate Registrar and Asaboro v. Aruwaji & Anor (supra) relied upon by appellant’s counsel, do not support the appellant’s case at all.
Under the 2nd issue formulated by the respondents, counsel cited S. 26(1) (a) of the Lagos State Administration of Estates Law, S. 56 of the Matrimonial Causes Act, Cap. 220 Laws of the Federation and related the sections to the facts of the instant case to justify the decision of the lower court. It is not in dispute that the marriage between the 1st respondent and the deceased was yet to be completely dissolved. Only a decree-nisi had been ordered which had not by the operation of S. 58 of the Matrimonial Causes Act become absolute. It meant that the two were still husband and wife when appellant went through the purported marriage with the deceased. Such an illegal marriage, it is contended, cannot confer the appellant the right she was asserting. Appellant had approached the court to acquire an equitable relief. Senior counsel submits that appellant never had the “clean hand” it takes to ask for such a relief.
Regarding respondents’ 3rd issue, learned Senior Counsel argues that appellant having not proved her claim was not entitled to judgment. The court was right to have so found. Exhibit C which appellant relied to prove that the deceased had assigned the property at 147 Ogunlana Drive, Lagos, to her, clearly shows that the assignment was made for a consideration of N520,000.00. The lower court was right to have inferred ulterior motive to a transaction between parties who purported to be married. In any event, the issue of who owns the property at No. 147 Ogunlana Drive is the subject matter of a different case before the Anambra State High Court at Awka. The court was justified to have declined from entertaining the claim.
This court, on the basis of the foregoing arguments, has been urged to dismiss the appeal.
The first and indeed the most important question to answer in this appeal is which, as between the two sets of opposing claimants, the respondents and the appellant, is better entitled to the grant of Letters of Administration? The lower court had preferred the respondents. Appellant’s counsel has reasoned and urged us to revisit the court’s preference of the 1st respondent only. Appellant had in her pleadings and evidence in proof of same conceded that 2nd and 3rd respondents being the deceased’s surviving children are entitled to the relief they sought and obtained. The grant to the 1st respondent however, having proceeded on wrong grounds, should be set aside. Not unexpectedly, learned Senior Counsel for the respondents thinks differently.
For very good measure, counsel on both sides have cited and relied on two earlier decisions of this very court in support of the opposing positions they articulated in their briefs and in the course of oral arguments by the respondents’ counsel. The two cases are Okon v. Administrator General Cross River (1992) 6 NWLR (Pt.248) 473 and Obusez v. Obusez (2001) 15 NWLR (Pt.736) 377. These two decisions which are a further application of an earlier decision of this court, Asere v. Asere (1991) 6 NWLR (Pt.197) 316 at 329, are of direct relevance to the question in issue in the instant matter. The principle evolved in the decisions persists. The principle continues to bind the court. The law and facts considered in the earlier cases are the same to those under consideration instantly. It only takes a restatement of the principle articulated in these earlier decisions of the court to resolve appellant’s 2nd issue which subsumes respondent’s 1st and 2nd issues for the determination of the appeal. Indeed that is what the doctrine of stare decisis is all about. See: Shell Dev. Co. (Nig.) Ltd. v. Omu (1998) 9 NWLR (Pt. 567) 672 CA and Ibrahim v. J.S.C. (1998) 14 NWLR (Pt.584) 1 SC.
In all the three decisions of this court alluded to supra (viz. Okon v. Administrator General Cross River, Obusez v. Obusez and Asere v. Asere), the point being emphasized is that by the application for the grant of Letters of Administration of estate of deceased persons who had died intestate, the courts so approached were urged to exercise their discretionary powers in determining who was entitled to the grant of administration. It is not any different in the instant matter. Section 26(1) requires that “in granting administration the court shall have regard to the rights of all persons interested in the estate of the deceased person or the proceeds of sale thereof’.
The major complaint against the decision of the lower court is that in the exercise of its discretionary powers the court had failed to give due consideration to the right of the appellant who was also “a person interested in the estate of the deceased person or the proceeds of sale thereof.”
It is trite that a discretion that had not been exercised in bad faith, frivolously or vexatiously but rather judicially and judiciously would persist unperturbed on appeal. However, a discretion the exercise of which had proceeded on the basis of irrelevant consideration or insufficient materials, being perverse, would have to be interfered with on appeal. See: University of Lagos & Anor v. M.I. Aigoro (1985) 1 NWLR (Pt. 1) 143; Williams v. Williams (1987) 2 NWLR (Pt.54) 66 at 82; Beredugo v. College of Science and Ekwunife v. Wayne (WA.) Ltd. (1989) 5 NWLR (Pt.122) 422.
In applying the above principles in determining whether or not the lower court’s exercise of judicial discretion was wrongly undertaken, resort must be had to the materials placed before the court. The grant of the Letters of Administration of the estate of the deceased person to the appellant who was in no position to and legally never married the deceased was unmistakably untenable. The lower court’s conclusion to this end is clearly the same. The court at page 52 of the record of appeal found that appellant’s interest in the estate of the deceased could only be defined by the legality of her purported marriage to the deceased both under the Onitsha Customary Law which appellant claimed to have contracted with the deceased on 7th July, 1995, and the Marriage Act as she sought to establish by exhibit A.
From the state of pleadings and evidence before the lower court, it appears settled that the decree nisi issued in respect of the marriage between the 1st respondent and the deceased was yet to become absolute. The decree nisi was issued on 30th September, 1996. Mr. Nzegwu died on 31st October, 1996. Yet by S. 58 of the Matrimonial Causes Act, a decree nisi becomes absolute at the expiration of three months after its issuance. Appellant’s marriage to the deceased under the Igbo customary law on 7th July, 1995, when the latter was still validly married to the 1st respondent under the Marriage Act, as rightly held by the lower court, could not have been lawful given the combined effect of S. 33, S. 35, S. 39 (1) and S. 58 of the Matrimonial Causes Act. In effect, with the lawful marriage between 1st respondent and the deceased subsisting right to the time of the latter’s death, appellant cannot legally claim entitlement to administration of the estate on the basis of her being deceased’s surviving lawful wife. The truth is that appellant never was legally married to the deceased.
Where an entitlement is tied to the existence of a particular fact and the fact has been manifested to be incapable of coming into being by the operation of the law, such an entitlement cannot in fact and in law enure to the claimant. In the instant case, where the appellant had tied her claim to entitlement of grant of letters of administration of the deceased’s estate by virtue of her being the lawful surviving wife of the deceased, her failure to prove that she was such a wife at the time of death of the deceased was fatal. The lower court’s inference that because appellant was not the lawful surviving wife of the deceased she was disentitled to the grant of administration of the estate is unassailable. Appellant’s 2nd issue for determination of the appeal necessarily has to and is hereby resolved against her.
There remains two ancillary complaints raised by the appellant on the basis of which her counsel has urged us to set aside the lower court’s decision. I shall in very brief terms treat these complaints.
Under appellant’s 1st issue for determination, the case of lack of jurisdiction on the part of the lower court to grant the 1st respondent the relief sought has been attempted. The effort has been made to show that Engineer Theophilus I.O. Nzegwu had lived and died in Onitsha, Anambra State thereby making the lower court incapable of exercising the jurisdiction it did in the instant case.
Not surprisingly, learned senior counsel to the respondents has strongly challenged this suggestion. He submitted, and one must uphold the submission, that this court is bound by the lawful evidence the lower court had of necessity to act upon. There is no evidence outside exhibit C, and same was tendered by the appellant, showing the address of the deceased. Exhibit C shows that the deceased had property in Lagos and lived in Victoria Island.
It is an elementary principle that a court must rely on such lawful evidence that had neither been challenged nor controverted. See: Odulaja v. Haddad (1973) 11 SC 357 and Provost, LACOED v.Edun (2004) 6 NWLR (Pt.870) 476 SC. Given the evidence that had been placed before the lower court, it had the jurisdiction to consider and oblige a grant of administration in respect of a deceased whose residence before death was within the territorial limits of Lagos State. The facts of the instant case, therefore, are manifestly distinguishable from those in the case of Asaboro v. Aruwaji supra. In the instant case, quite unlike in Asaboro’s case, available evidence has clearly established that although the deceased in respect of whose estate the application for the grant of administration was being considered had died in Onitsha, Anambra State, because the deceased was resident in and had his estate in Lagos, the trial court had jurisdiction. In the face of facts regarding the residence of the deceased, the singular fact of his death in Onitsha did not disentitle the lower court from assuming jurisdiction.
It is a further argument of appellant’s counsel under this issue that since the prayers of the respondents was in general terms, having not specified whether the Letters of Administration was in respect of either personal or real estate of the deceased, the application had by that defect been rendered incompetent. This argument should not be allowed to loom unnecessarily far and wide. Learned senior counsel for the respondent is right in his submission that S.22 of the Lagos State Administration of Estate Law had empowered the lower court to entertain the application as general as its tenor was. The section provides: –
“22. probate or administration in respect of the real estate of a deceased person, or any part thereof, may be granted either separately or together with probate or administration of his personal estate, and may also be granted in respect of real estate only where there is no personal estate; or in respect of a trust estate only, and a grant of administration to real estate may be limited in any way the court thinks proper.”
From the foregoing, a provision constituted by clear and unambiguous words, the lower court’s discretionary powers of grant of administration was wide indeed.
Respondents’ claim was for “an order directing the grant to them of Letters of Administration of the estate of Engineer Theophilus I.O. Nzegwu”. This is a prayer for the grant of administration in respect of the entire estate of the deceased both real and personal. By S. 22 of the applicable law it was a valid prayer which the court had the power to and validly granted.
Also, paragraph 6 of appellant’s statement of defence and counter-claim is revealingly in the same general terms she now castigates the respondents for. The paragraph is hereunder reproduced.
“6 the defendant avers that as the widow to the late Theophilus Nzegwu she is perfectly entitled to join the 2nd and 3rd plaintiffs in the pending application for Letters of Administration because the said plaintiffs are recognized as the surviving children of the deceased.”
From this averment, appellant certainly knew what was being claimed by the respondents. Law apart, she cannot claim to have been misled. She can only blow hot or cold at a particular time. She cannot do both at the same time.
From the foregoing, appellant’s 1st issue like her 2nd crashes as well. It is resolved against her but in favour of the respondents.
Appellant’s fourth issue is virtually the same with respondents’ 2nd issue for determination. Appellant’s counter-claim which is contained in paragraph 10 was predicated on paragraphs 5, 8 and 9 of her amended statement of defence and counterclaim. The four paragraphs are hereunder supplied for their relevance.
“5. With respect to paragraph 10 of the statement of claim, the two legal assignments granted to the defendant by the deceased, Theophilus Nzegwu on the 29th July, 1996, in respect of his properties at 147 Ogunlana Drive, Surulere and Plot 1303 Akin Adesola Street, Victoria Island, do not form part of the deceased estate which required any administration by his legal personal representatives. Therefore, the plaintiffs are to render an account to the defendant for the sum of N520,000 (five hundred and twenty thousand naira) being rent collected by them on the property at 147 Ogunlana Drive, Surulere for 1996/97.
- The defendant repeats paragraphs 5 of the statement of defence and say that the plaintiffs knew very well about the existence of the legal assignment of the said two properties to the defendant by the deceased husband.
- That notwithstanding this knowledge the plaintiffs cajoled the two tenants at No. 147 Ogunlana Drive, Surulere and thereby collected N520,000 (five hundred and twenty thousand naira) from them being the rent for 1996/97.
- Wherefore the defendant counterclaims: that consequent on the above the plaintiffs are indebted to the defendant to the tune of 520,000.00 (five hundred and twenty thousand naira) being one year rent collected on the property of the defendant at 147 Ogunlana Drive, Surulere plus interest and the same continue to her interest at the rate of 25% per annum until payment.”
Paragraphs 2, 3 and 4 of respondents’ defence to appellant’s amended statement of defence and counterclaim being important are hereunder reproduced:-
“2. The plaintiffs aver that whilst they are aware of the existence of documents purporting to be assignments to the defendant of 147 Ogunlana Drive, Surulere and Plot 1303 Akin Akinsola Street, Victoria Island, the issue of the validity of the said assignments is presently the subject of proceedings between the parties hereto in suit No. LD/899/96, pending before the Lagos High Court.
- In the circumstances, therefore, the plaintiffs shall contend that the defendant’s counterclaim cannot be maintained in this action, since this action, being a probate action, involves only the question of who are the persons entitled to be granted Letters of Administration of the estate of the said Theophilus I.O. Nzegwu.
- The plaintiffs shall therefore contend that the counterclaim should be dismissed or struck out.”
From the pleadings of parties and evidence led on same it is not in dispute that the subject matter of appellant’s counter-claim in the present case is the same as in suit No. LD/899/96 different from and earlier to the instant case. The position articulated in judgment of the lower court in dismissing appellant’s counter-claim is hereunder reproduced from page 57 to page 58 of the record:-
“… Again since from the available uncontroverted evidence before the court that the properties in exhibits B and C are subject matter in dispute in another court, it will be contemptuous of this court to make a pronouncement on them. The matter is still subjudice.
On the issue of counterclaim made by the defendant claiming refund of N520,000.00 as rent collected by the plaintiffs from the property at 147 Ogulana Drive. I am in total agreement with Mr. Ogundipe that there is no concrete or positive proof to this effect before the court besides, since the basis for the counterclaim is the property in exhibit C held to be irrelevant above in this judgment the counterclaim is hereby held to lack merit. … I hereby, dismiss the counterclaim of the defendant in its entirety.”
There seems to be some warped thinking by the lower court in the foregoing excerpt. The court clearly dithered. Inspite of its finding that “the properties in exhibits B and C are the subject matter in dispute in another court”, and “it will be contemptuous … to make pronouncement on them” as “the matter is still subjudice”, the court proceeded to make pronouncements on the very matter it had found it should not. The court found appellant’s counterclaim that had arisen from “the properties in exhibits B and C irrelevant” and without “concrete or positive proof’. Consequently, the court dismissed “the counterclaim of the defendant in its entirety.”
It is undoubtedly an abuse of the court’s process for a litigant to initiate concurrent suits in respect of the same relief before the same court and/or different Judges. In the instant case that was what the appellant was rightly found, on the basis of the pleadings and evidence before the court, to have done. The court was wrong when it proceeded to hear a matter that was clearly an abuse of its process. It was not open to the court to consider the very process that had been established to be illegal and incompetent. The correct procedure for the lower court to resort to was to stay or strike out the subsequent suit appellant instituted before it. See: J.C. Ltd. v. Ezenwa (1996) 4 NWLR (Pt.443) 391; Ikine v. Edjerode (2001) 18 NWLR (Pt.745) 446 SC. and A.-G., Ondo State v. A.-G., Ekiti State (2001) 17 NWLR (Pt.743) 706. I shall oblige appellant her 4th issue for determination. This does not affect her fortunes, though, in the appeal. This is because the mistake of the lower court of considering and dismissing appellant’s counterclaim instead of either striking out or staying same had neither caused appellant some disadvantage nor given the respondents any advantage in the instant matter.
The mistake of a trial court that had not occasioned injustice would have no adverse effect on its decision on appeal. See: Odukwe v. Ogunbiyi (1998) 8NWLR (Pt. 561) 339 SC and Ume v. Okoronkwo (1996) 10 NWLR (Pt. 477) 133.
Lastly, and this affects appellant’s 3rd issue for determination, it is incumbent on counsel to always distinguish between the appealable decision of a court and that which is not. The distinction is necessary because it is not every view expressed in proceedings that is appealable. The view of the lower court complained against, scathing as it was, belongs to that category which should not have been made an issue in the appeal. The relevant opinion of the court is at page 58 and reads:-
“In addition this court hereby directs that the State Attorney General and Commissioner for Justice/D.P.P. take appropriate step to cause the arrest of the defendant for committing an offence under section 39(1) of the Marriage 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 plaintiffs’ counsel lodge a complaint with the police and cause the defendant to be arrested and charged to court for flagrantly committing an offence under section 39 of the Marriage Act.”
The above statement is undeniably a passing remark. Only findings of the trial court necessarily based on the pleadings and evidence on such pleadings, which the reproduced comments above are not, constitute appealable decisions of that court. Consequently, any ground of appeal and issues purportedly drawn from grounds that have evolved from opinions rather than the appealable decisions of the trial court are incompetent. See: Boothia Maritime Inc. v. Fareast Mercantile Co. Ltd. (2001) 9 NWLR (Pt. 719) 572 SC. In so holding, appellant’s 3rd issue for determination, the arguments canvassed under the issue and most importantly the ground of appeal that gave rise to the issue and arguments are hereby discountenanced and struck out.
In the result, notwithstanding appellant’s success with respect to her 4th issue, this appeal lacks merit. It is dismissed. The judgment of the lower court is hereby affirmed. Costs of this appeal assessed at N7,000.00 (seven thousand naira) is ordered against the appellant in favour of the respondents.
Other Citations: (2004)LCN/1672(CA)
