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Home » Nigerian Cases » Supreme Court » Miss Nkiru Amobi Vs Mrs. Grace O. Nzegwu & Ors (2013) LLJR-SC

Miss Nkiru Amobi Vs Mrs. Grace O. Nzegwu & Ors (2013) LLJR-SC

Miss Nkiru Amobi Vs Mrs. Grace O. Nzegwu & Ors (2013)

LAWGLOBAL HUB Lead Judgment Report

MOTONMORI OLATOKUNBO KEKERE-EKUN, JSC

This is an appeal against the judgment of the Court of Appeal Enugu Division delivered on 15/12/2004 dismissing the appellant’s appeal and upholding the decision of the High Court of Anambra State, sitting at Onitsha, which granted the respondent’s reliefs as claimed.

The facts of the case are that on 28/6/1958 the late Engineer Theophilus I. O. Nzegwu married the 1st Respondent (Mrs. Grace O. Nzegwu) in London, UK. The 2nd and 3rd respondents are the surviving issues of the marriage. The said marriage broke down irretrievably consequent upon which the deceased and the 1st respondent filed a petition and cross-petition for the dissolution of the marriage. On 30/9/96 the High Court of Anambra state sitting at Onitsha, with the consent of the parties granted a decree nisi dissolving the marriage.

On 7th July 1995, during the subsistence of his legal marriage to the 1st respondent, the deceased entered into a marriage with the appellant under Onitsha Customary Law. On 23/10/96, less than 30 days after the grant of the decree nisi, the deceased allegedly married the appellant under the Marriage Act. Unfortunately the deceased died intestate on 31/10/96 at Onitsha Anambra State before the decree nisi could be made absolute.

Before his death he had by way of assignment transferred two properties in Lagos at Plot 1303A Akin Adesola Street, Victoria Island and Plot 147A & B Ogunlana Drive, Surulere to the Appellant. On 6/12/96 the 1st respondent applied to the Probate Registry at the High Court of Anambra State for Letters of Administration in respect of the deceased’s estate. The appellant entered a caveat against the application and the 1st respondent discontinued same. Sometime in 1998 the respondents again applied for Letters of Administration but this time to the Probate Registry at the High Court of Lagos State. The Appellant entered a caveat on 19/11/98.

On 10/2/99 the respondents instituted an action against the appellant at the High Court of Lagos State seeking an order “directing the grant to them of Letters of Administration of the Estate of Engineer Theophilus I. O. Nzegwu”

Pleadings were filed and exchanged. The appellant filed a counterclaim. The parties led evidence in respect of their respective claims. At the conclusion of the trial, the High Court on 22/3/2001 granted the respondents’ reliefs as claimed and dismissed the appellant’s counterclaim. The learned trial Judge also made an order directing the Attorney-General and the Director of Public Prosecutions to “arrest, try and convict” the appellant for bigamy. His Lordship further directed the respondent’s counsel “to lodge a complaint with the Police and cause the Defendant/Appellant to be arrested and charged to court for flagrantly committing an offence under Section 39 of the Marriage Act.” Not surprisingly, the appellant was dissatisfied with the entire decision and appealed to the Court of Appeal. On 15/12/2004 the Court of Appeal (hereinafter referred to as the Lower Court) dismissed the appeal and affirmed the judgment of the High Court. Still dissatisfied, the appellant has now appealed to this Court vide her notice and grounds of appeal dated 16/4/2004 containing four grounds of appeal.

The parties herein duly filed and exchanged their respective briefs of argument in compliance with the rules of this court. Both parties formulated three issues for determination from the grounds of appeal. The Appellant’s issues as contained in her brief of argument dated 21/10/2005 but deemed filed on 30/1/2013, are:

Whether the Court below was right in holding that the High Court of Lagos State had the jurisdiction to grant Letters of Administration to administer the estate of Late Engineer Theophilus I. O. Nzegwu who hailed from, lived and died in Onitsha, Anambra State.

Whether the learned Justices of the Court of Appeal were right when they held that the 1st Respondent, as against the Appellant was entitled to Letters of Administration over the estate of Engineer Theophilus I. O. Nzegwu (Deceased) and in affirming the exercise of discretion of the learned trial Judge to grant Letters of Administration to the 1st Respondent.

Whether the learned Justices of the court of Appeal were right when they held that the order or directive of the learned trial judge that the Appellant be “arrested”, “charged”, “tried” and “convicted” for bigamy was a passing remark and therefore not appealable.

The respondents’ brief dated 25/4/2006 was deemed filed on 5/5/2006.

The issues formulated are:

Was the Court below right in holding that the trial Court did indeed have jurisdiction to entertain the grant of the Letters of Administration over the estate of the deceased?

Was the court below right in affirming the decision of the trial court granting the Letters of Administration to the respondents to the exclusion of the appellant?

3.Whether in view of the findings of the two courts below, the appellant has the basis to lay claims to the grant of Letters of Administration over the estate of the deceased to her and the competence to maintain this appeal?

The appeal shall be determined on the issues as formulated by the appellant, which fully encapsulate the issues in controversy between the parties. Issue 1 is however modified to read:

“Whether the Court below was right in holding that the High Court of Lagos State had the jurisdiction to grant Letters of Administration to administer the estate of the deceased.”

It is necessary at this stage to note that the respondents filed a notice of preliminary objection dated 10/7/2013 and filed on 15/7/2013. It was however withdrawn at the hearing of the appeal on 24/9/2013. It is accordingly struck out.

Issue 1

Referring to the evidence of the deceased in the divorce proceedings before the High Court of Anambra State and the evidence of the 1st respondent in the proceedings before Akande, J. at the High Court of Lagos State in respect of the application for the grant of Letters of Administration, SHOLA LAMID ESQ., learned counsel for the appellant argued that it was not in dispute that the deceased lived and died in Onitsha, Anambra State. He noted that the lower Courts affirmation of the trial court’s decision was based on Exhibit C, a deed of assignment dated 29/7/96 between the deceased and the appellant in respect of the property at Plot 1303A Akin Adesola Street, Victoria Island, Lagos because the said exhibit showed the address of the deceased to be Plot 1303A Akin Adesola Street Victoria Island, Lagos. He argued that there is a difference between “residence” and “address” and that the fact that a party states his address does not mean that such address constitutes his residence. He referred to several dictionary definitions of both words and the textbook S. O. Imhanobe: Understanding Legal Drafting and Conveyancing (2002) page 116 and submitted that there is nothing in Exhibit C to suggest that the address stated therein was the residence of the deceased. He referred to the proceedings before the High Court of Lagos State and submitted that as the learned trial Judge refused to consider Exhibit C on the ground that the property referred to therein was the subject of another suit pending before the High Court, it was wrong for the lower court to have relied on it in reaching the conclusion that the deceased resided in Lagos. Referring to Exhibits B and C he argued further that Exhibit C transferred the property to the appellant on the day the deed was made and there was therefore no basis for the finding of the Court of Appeal that the said property was the residence of the deceased at the time of his death. He submitted that the only evidence as to where the deceased lived and died was the evidence of the parties themselves as contained in the proceedings earlier referred to.

In order to determine whether the trial Court had jurisdiction to grant the Letters of Administration in this case, learned counsel referred to Order 58 Rule 1 (1) of the High Court of Lagos State (Civil Procedure) Rules 1994. He examined the expression “subject to” as contained in the said provision by reference to the case of Tukur Vs Govt. of Gongola State (1989) 4 NWLR (Pt.117) 565. He argued that in order to invoke the jurisdiction of the High Court of Lagos State, the deceased must have been domiciled in Lagos. He maintained that it was the High Court of Anambra State that had jurisdiction to issue Letters of Administration over the estate of the deceased and that the administrator or administratrix would then have the option of resealing the grant in Lagos State. He referred to Sections 2 and 6 of the Probates (Re-Sealing) Act. He also referred us to: Lijadu Vs Franklin (1965) All NLR 110; Asaboro v. Aruwaji (1974) SC 31.

Learned counsel for the appellant observed that in the course of his judgment the learned trial Judge declined to make any finding in respect of Exhibits B and C on the ground that “it was not before the court that the plaintiffs were asking for Letters of Administration in respect of the real and personal property of the deceased”. He noted that nevertheless, the court went ahead to make an omnibus grant of Letters of Administration in respect of deceased’s property. He argued that there was no appeal against this finding and therefore the Court of Appeal erred in setting it aside. He submitted that an applicant for the grant of Letters of Administration must be specific as to the nature of the grant applied for, which could be for either a limited grant or a full grant. He submitted that having failed to specific the nature of the grant applied for, it was not open to the court below to speculate and infer any other meaning to the claim. He referred to: A.G. Ondo State vs A.G. Ekiti (2001) 17 NWLR (Pt.743) 706 @ 790. He also relied on Section 22 of the Administration of Estates Law of Lagos State and the cases of: Ademola Vs Probate Registrar (1971) 1 ALL NLR 155 @ 161: Ugu v. Tabi (1971) 1 All NLR 192 @ 202 – 204.

In conclusion on this issue, learned counsel urged us to hold that the plaintiffs’ claims before the trial court and indeed the entire action was incompetent and the court had no jurisdiction to entertain it. He urged us to answer this issue in the negative and resolve it in the appellant’s favour.

In reaction to the above submissions, B. A. ONUOHA ESQ., learned counsel for the respondent submitted that contrary to the appellant’s contention that the deceased was resident in Anambra State prior to his death, evidence elicited from PW1 (the 1st respondent) under cross-examination revealed that the deceased in fact lived with her at Plot 1303A Akin Adesola Street, Victoria Island, Lagos up to two weeks before he died. He submitted that this evidence corroborates the finding of the court below that there was no evidence outside Exhibit C that showed the address of the deceased. He argued further that the lower court was correct to rely on the said evidence as proof of the deceased’s residence at the time of his death. He was of the view that the attempt to distinguish between “residence” and “address” by learned counsel for the appellant is merely an attempt to confuse issues. He submitted further that the following facts are not in dispute:

That the deceased in Exhibit C gave his address as Plot 1303A Akin Adesola Street, Victoria Island.

That the deceased died in Onitsha Anambra State.

iii. That the deceased had his estate in Lagos as found by the lower court (where the issue was raised for the first time).

With regard to the reliance by the learned trial judge on Exhibit C notwithstanding the observation that the property therein was subject of another proceeding, learned counsel submitted that in so far as the documents were admissible and duly admitted in evidence without opposition, the trial court and the court below were entitled to make use of them in determining the residence of the deceased prior to his death. He noted that the trial court made no effort to pronounce on the validity or otherwise of the assignment therein contained.

On the authority of Asaboro Vs Aruwaji (supra) relied upon by learned counsel for the appellant, Mr. Onuoha urged us to uphold the concurrent findings of both lower courts that the deceased was resident and had his estate in Lagos. He submitted that the evidence on record reasonably justifies the finding and that the appellant has not shown any special circumstances to warrant interference therewith.

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With regard to the submission, that the respondents’ claim before the trial court was incompetent for failing to specify the type of grant applied for learned counsel submitted that the appellant has failed to show that the said court wrongly exercised its discretion in granting the relief sought. He submitted that the cases of Ademola Vs Probate Registrar (supra), Ugu vs Tabi (supra) and Erewa Vs Idehen (supra) relied upon by learned counsel for the appellant were inapplicable in the instant case on the ground that those cases were concerned with the application for limited grant of Letters of Administration, which is not the case in this appeal. He submitted that, as observed by the learned Justices of the court below, Section 22 of the Administration of Estates Law of Lagos State is wide enough to accommodate the respondents’ prayer. He referred to the judgment of the trial court at page 92 of the record and contended that the court was well aware that the relief sought was not for a limited grant but for a grant over the entirety of the estate of the deceased and that it exercised its discretion in line with the provisions of section 22 of the Administration of Estates Law. He submitted that it was this exercise of discretion that the lower court held had been regularly exercised. He urged us to discountenance the submissions of learned counsel for the appellant in this regard.

In the appellants reply brief dated 21/8/2013 but deemed filed on 24/9/2013 (the day we heard the appeal), it was argued that there was no pleading to the effect that the deceased lived and died in Lagos State. He submitted that evidence led on facts not pleaded goes to no issue. He cited several authorities in support of this submission. He argued further that by the Deed of Assignment, Exhibit C, the deceased had divested himself of his interest in Plot 1303A Akin Adesola Street, Victoria Island as shown by Exhibit B (certified true copy of the title Registration). He contended that having divested himself of his title in the said properties, he was not entitled to them at his death. He argued that at the time of his death he had no property in Lagos he could call his own. He submitted further that before the court could place reliance on Exhibit C, the facts in relation thereto must have been pleaded, which the respondents failed to do. He also submitted that it would not be correct to argue that there are concurrent findings of fact by the two courts below because the issue of the court’s jurisdiction was raised for the first time at the Court of Appeal. He argued that even if the said finding was made concurrently by both lower courts, such finding would not be allowed to stand where it is shown to be perverse or to contain errors of law, substantive and/or procedural, which led to a miscarriage of justice. He referred to: Ibhafidon Vs Igbinosun (2000) 4 SC (Pt.1) 96 @ 104; Omoborinola II vs Military Governor, Ondo State (1998) 14 NWLR (Pt.584); Balogun Vs Agboola (1974) 1 ALL NLR 66; Ebba Vs Ogodo (1984) 4 SC 84.

I have given careful consideration to the submissions of both learned counsel in respect of this issue. There is no doubt that jurisdiction is a threshold issue, which must be resolved first before any other consideration. The law is trite that where a court lacks jurisdiction to hear a matter the entire proceedings, no matter how well conducted would amount to a nullity.

A court is competent to entertain a cause or matter in the following circumstances:

When the subject matter of the case is within the court’s jurisdiction.

When there is no feature of the case which prevents the court from exercising its jurisdiction.

When it is properly constituted as regards its members and the qualification of the members of the bench and no member is disqualified for one reason or another.

See: Madukolu v. Nkemdilim (1962) 2 SCNLR 341; Galadima v. Tabmbai (2000) 6 SC. (Pt.1) 196; Araka v. Ejeagwu (2000) 12 SC (Pt.1) 99; Dangana & Anor v. Usman & Ors. (2012) 2 SC (Pt.III) 103 @ 109 – 110

Order 58 Rule 1 (1) of the High Court of Lagos State (Civil Procedure) Rules 1994 (then applicable to this case) provides:

“1(1) Subject to the provisions of Rules 39 and 40 of this order, when any person subject to the jurisdiction of the court dies, all petitions for the granting of any Letters of Administration of the estate of the deceased person, with or without a will attached, and all applications on other matters connected therewith shall be made to the Probate Registrar of the Court at the Probate Registry.”

In the instant case it is contended on behalf of the appellant that the trial court ought not to have assumed jurisdiction to hear the case on the ground that the deceased lived and died at Onitsha, Anambra State. It is worthy of note that the issue of jurisdiction was not raised before the trial court. It was raised for the first time at the Court of Appeal. For this reason, the option open to that court was to consider the evidence and material before the trial court to determine whether there was anything that divested the court of jurisdiction to entertain the matter.

In paragraph 10 of the respondents’ statement of claim at page 15 of the record, the respondents pleaded thus:

“10. The defendant’s claim that the deceased transferred 147b Ogunlana Drive, Surulere, Lagos to her is presently pending before the Lagos High Court between the plaintiffs herein and the defendant. The defendant’s claim concerning Plot 1303A Akin Adesola Street, Victoria Island will now be made the subject of the said suit, the defendant not having previously laid claim to the said property. The plaintiffs are contending in the said action that any assignment of property belonging to the deceased was invalid.”

Therefore, contrary to the submission of learned counsel for the appellant, the respondents had pleaded that the property at plot 1303A Akin Adesola Street, Victoria Island, Lagos belonged to the deceased and that the issue of the alleged assignment of same to the appellant was to be made the subject of the proceedings already pending in another suit involving another property at Surulere, Lagos. It was the contention of the appellant in paragraph 5 of her amended statement of defence and counter claim at page 23 of the record that the two properties having been assigned to her by the deceased did not form part of his estate in respect of which Letters of Administration could be granted. In their reply to the appellant’s pleading, the respondents maintained that the validity of the alleged assignments to the appellant were already in issue in the pending suit before the Lagos State High Court. The essence of these pleadings is that the deceased owned properties in Lagos State. Both the appellant and the 1st respondent confirmed this fact in the course of their evidence before the trial court.

Furthermore, there were in evidence, Exhibits B and C tendered by the appellant herself. Exhibit B is a certified true copy of the registration of title in respect of Plot 1303A Akin Adesola Street Victoria Island, Lagos while Exhibit C is a certified true copy of the deed of assignment in respect of the property known as No. 147 Ogunlana Drive, Surulere, Lagos. In Exhibit C, the commencement of the deed of assignment reads in part:

“THIS DEED OF ASSIGNMENT made this 29th day of July 1996 BETWEEN THEOPHILUS IFEANYI OFILI NZEGWU of PLOT 1303A Akin Adesola Street, Victoria Island, Lagos State (hereinafter called “The Assignor”…)”.

The lower court found that having regard to the only address available to the court, the deceased lived and owned property in Lagos, within the jurisdiction of the trial court. As noted earlier, the issue of the court’s jurisdiction did not arise at the trial court. Having been raised for the first time at the Court of Appeal, that court was entitled to consider the evidence as presented before the trial court to determine whether that court had jurisdiction to entertain the claim or not. I agree with learned counsel for the respondents that the appellant’s counsel be laboured himself unnecessarily with the distinction between “address” and “residence”. The fact is that there was no contrary evidence to discredit the contention that the deceased lived and owned property within the jurisdiction of the trial court, although he died in Onitsha, Anambra State. The 1st respondent gave her address as Plot 1303A Akin Adesola Street, Victoria Island, Lagos. Under cross-examination, she stated that the deceased lived with her up to two week prior to his death at that address. At best the evidence before the court showed that the deceased resided both in Onibha and Lagos and that he owned property in Lagos State.

An appellate court is usually reluctant to interfere with the decision of a lower court, which had the opportunity of seeing and hearing the witnesses testify, unless such decision is perverse, not based on a proper and dispassionate appraisal of the evidence and finding of fact on both sides, or where on the face of the record it is evident that justice has not been done. See: Saleh vs. B.O.N. Ltd (2O06) 6 NWLR (Pt.976) 316 @ 329 – 330 H – A per Musdapher, JSC (as he then was); Agbaje vs. Fashola (2008) 6 NWLR (Pt. 1082) 90 @ 153 B-E; Mafimisebi vs. Ehuwa (2007) ALL FWLR (Pt.355) 562 @ 605 G. In the instant case, the finding of the lower court based on the available evidence before the trial court cannot be considered to be perverse. It is well founded and this court will not interfere with it.

I have considered the authority of Asaboro v. Aruwaji (supra) referred to by learned counsel for the appellant. In that case the deceased died intestate at Ikaro via Ifon in the then Western State of Nigeria. His fixed place of abode was at Ikaro. The High Court of Ibadan, Western State of Nigeria, had granted Letters of Administration in respect of his estate to two administrators and an administratrix. The deceased had some properties in Lagos and it was necessary to reseal the grant obtained in Ibadan in Lagos. It was contended that the administratrix was uncooperative. The administrators therefore brought an action against her before the High Court of Lagos State seeking an order directing the issuance of Letters of Administration in their favour. However, while the case before the Lagos State High Court was pending, the High Court of Ibadan revoked the Letters of Administration granted in favour of the parties and made a grant in favour of some other persons. The Lagos State High Court subsequently ordered the issuance of Letters of Administration in favour of the plaintiffs. On appeal it was held that since the High court of Ibadan had revoked the Letters of Administration, the High court of Lagos state lacked jurisdiction to issue Letters of Administration in respect of the estate of the deceased. It was held that it is only where the deceased intestate was subject to the jurisdiction of that court that it could issue the said Letters of Administration. In the circumstances of that case it could only re-seal Letters granted in Ibadan, the deceased’s fixed place of abode. Since the High Court of Ibadan had revoked the Letters of Administration there was nothing over which the High court of Lagos State could exercise its powers to re-seal. The appeal against the order directing the issuance of Letters of Administration to the plaintiffs therefore succeeded. In Asaboro’s case (supra) there was no dispute as to the fact that the deceased lived and died in Ikaro via Ifon. That is not the situation in the instant case. The issue of re-sealing the grant in Lagos state therefore does not arise. It is for this reason that the case of Lijadu Vs Franklin (supra) also relied upon by learned counsel for the appellant is inapplicable to the facts of this case.

It must be noted that the fact that the trial court declined to make any finding in respect of Exhibit C having regard to the fact that proceedings in respect thereof were pending before another court did not preclude the Court of Appeal from making use of the exhibit, which was property admitted in evidence, without opposition, in determining that the deceased resided in Lagos. Such finding had no bearing on the validity or otherwise of the alleged assignment therein contained.

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Under this issue, learned counsel for the appellant has also urged us to hold that the respondents’ claim before the trial court was incompetent for not being specific as to the nature of the grant being sought. First of all, it is necessary to examine the pleadings again and reproduce the claim. By paragraph 12 of the statement of claim the respondents sought the following relief from the trial court:

“12. AND the plaintiffs claim the grant to them of Letters of Administration of the estate and effects of the deceased.”

The court below relied on the provisions of Section 22 of the Administration of Estates Law Cap. 3 Laws of Lagos State, 1994 in holding that the trial court properly exercised its discretion in granting the order sought.

The section Provides:

“22. Probate or administration in respect of the real estate of a deceased person, or any party therefore, be granted either separately or together with probate or administration of his personal estate, 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.”

I am inclined to agree with the learned Justices of the lower court that from the above provision, the powers of the High Court to grant Letters of Administration are very wide. The respondents sought a grant in respect of the estate and “effects” of the deceased. As rightly found by the lower court, the prayer was for the grant of administration in respect of the entire estate of the deceased, both real and personal. Even where an application for a grant is not specific, by the provisions of Section 22 of the Administration of Estates Law referred to above, the Court may still exercise its discretion by limiting the grant as it sees fit. In the case of Ugu Vs Tabi (supra) cited by learned counsel for the appellant, the respondent specifically applied for a limited grant of Letters of Administration in respect of the personal property of the deceased intestate but subsequently sought to exert control over the real property. The purport of the decisions in Ademola Vs Probate Registrar (supra) and Erewa Vs Idehen (supra) is that where the grant of Letters of Administration is limited to either the real or personal property of the deceased, the administrator has no power to administer the property (real or personal) not covered by the grant. I agree with the lower court that the respondents’ prayer was a valid one and that the trial court had the requisite power to grant it. I am of the humble view that having made a prayer in similarly general terms in paragraph 6 of her statement of defence and counterclaim, it does not lie in the appellant mouth to complain that the prayer is vague. If her counterclaim had succeeded the relief would have been granted as prayed.

In conclusion, I hereby answer the question posed under this issue in the affirmative. I hold that the trial court had jurisdiction to entertain the respondents’ claim. The issue is accordingly resolved against the appellant and in favour of the respondents.

Issue 2

In support of this issue, SHOLA LAMID Esq., learned counsel for the appellant, referred to the finding of the learned trial judge that the marriage between the deceased and the 1st respondent was subsisting up to the time of his death, the decree nisi dissolving the marriage between the deceased and the 1st respondent not having become absolute before he died. He submitted that the lower court affirmed the decision of the trial court solely on the ground that the 1st respondent is the surviving legal spouse of the deceased.

Referring to the case of Obusez Vs Obisez (2001) 15 NWLR (Pt.736) 377 @ 391 & 398 per Oguntade, JCA, he submitted that it is not the law that the surviving widow of a deceased person is automatically entitled to the grant of Letters of Administration in respect of his estate. He also relied on: Okon Vs Administrator General, Cross River (1992) 6 NWLR (Pt.248) 473. He submitted that since both parties had manifested their intention to discontinue with the marriage, having lived apart for a continuous period of at least three years before the presentation of the divorce petition, and having both consented to a decree nisi, the 1st respondent could not be considered a fit and proper person to administer the estate of the deceased. He was of the view that it having been shown that there was no love lost between the couple, it would be unfair to the deceased to allow the 1st respondent to administer his estate. He submitted that it could never have been the deceased’s intention that the 1st respondent should administer his estate.

He submitted further that the mere fact that the deceased was married under the Marriage Act did not mean that his estate must be dealt with in accordance with the Act. He referred to the case of Obusez Vs Obusez (supra) wherein it was held that the presumption that the distribution of the estate of a deceased person who was subject to customary law but went on to transact a marriage under the Marriage Act would be regulated by the Marriage Act, was a presumption that could be rebutted by evidence of the manner in which the deceased lived his life, which might suggest that he intended customary law to apply. He contended that in the circumstances of the instant case the manner of life of the deceased suggested that he did not wish to be bound by the Marriage Act and/or the Administration of Estates Law. He argued that by consenting to the dissolution of the marriage and to the decree nisi, the parties had manifested a clear intention not to live together any longer as husband and wife. He submitted that although the deceased died before the decree nisi could become absolute, the equitable maxim: “equity regards as done that which ought to be done”, ought to apply. He submitted that the court of equity is a court of justice and not of form. He contended that the requirement of a decree nisi becoming absolute within a specified time is a question of form at which equity frowns. He referred to: Okoro vs Ntui Ogara (1964) 6 NLR 99 @ 150.

He submitted further that the provisions of Section 58 (4) of the Matrimonial Causes Act, which provides that a decree nisi shall not become absolute by force of the section where any of the parties to the marriage died, is inapplicable in this case because the decree nisi was obtained by consent. He contended that in law, once a party consents to an order being made, such consent cannot be withdrawn. He referred to: Harvey Vs Holden Union Sanitary Authority (1884) 22 CH D. 249; Holt v. Jessy (1876) 3 CH. D 177. He submitted that having regard to the circumstances of this case, the two courts below did not exercise their discretion “according to the rules of reason, justice and law.” He submitted that “the concurrent findings of the two courts below on this issue has proceeded from a violation of some clear principles of law and procedure and have (sic) therefore occasioned a miscarriage of justice.” He urged us to resolve this issue in the appellants favour.

In response to the above submissions, B. A. ONUOHA ESQ., learned counsel for the respondent submitted that the appellant has failed to show any special circumstance to warrant interference with the concurrent findings of fact of the two lower courts. He referred to: Amadi Vs Orisakwe (2005) 7 NWLR (Pt. 924) 385 and Okeke Vs Agbodike (1999) 14 NWLR (Pt.638) 215 @ 222 A – B. He submitted that the issues as to whether the 1st respondent was a fit and proper person to be granted Letters of Administration in respect of the deceased’s estate and whether his manner of life suggested that he intended the distribution of his estate to be governed by customary law and the application of the principles of equity in this regard was not part of the case before the two lower courts and therefore goes to no issue in this appeal. He submitted further that in any event, equity follows the law and in this instance the relevant law is the Matrimonial Causes Act and the Administration of Estates Law of Lagos State. He submitted further that the appellant failed to identify the principles of law and procedure allegedly violated by the two lower courts or the miscarriage of justice arising there from. He urged us to discountenance the submissions and resolve this issue against the appellant.

In reply to the submissions of learned counsel for the respondents, learned counsel for the appellant submitted that the dissolution of a marriage by consent should be compared to a consent judgment, which could only be set aside on the ground of fraud, mistake or misrepresentation. On the nature of a consent judgment he referred to: Afegbai Vs A.G. Ondo State (2001) 7 SC (Pt.II) 1 @ 15. On the issue of miscarriage of justice, he submitted that where the findings of the two lower courts are found to be perverse, it satisfies one of the conditions for setting aside the decision. He argued that the finding of the two lower courts that the 1st respondent is the lawful wife of the deceased by virtue of the decree nisi not having become absolute, which is being complained of, is not a concurrent finding of fact but of law and therefore the requirements for the setting aside of concurrent findings of fact are not applicable. He submitted that even where they constitute concurrent findings of fact, this Court has the power and duty to interfere with such findings where they have led to an improper and wrongful exercise of discretion. He referred to: Re Adewunmi & Ors. (1988) 7 SC (Pt.II) 1 @ 10 – 11.

The law is settled that issues for determination in an appeal must fall within the scope of the grounds of appeal filed. The grounds of appeal in turn must relate to the decision appealed against and should be a challenge to the validity of the ratio of that decision. See: Egbe Vs Alhaji (1990) 3 SC (Pt.III) 63 @ 109: Leedo Presidential Hotel Ltd. Vs B.O.N. (Nig.) Ltd. (1993) 1 NWLR (269) 334 @ 347 A – C. In ground 3 of the notice of appeal, the appellant is challenging the decision of the Court of Appeal upholding the finding of the trial court that the 1st respondent is entitled to be granted Letters of Administration in respect of the deceased estate because she was the lawful wife of the deceased at the time of his death. Under particulars (b) and (d) of the said ground, the appellant raised the issue of whether the 1st respondent was a fit and proper person to be appointed Administratrix of the estate and the fact that having consented to the decree nisi she could not withdraw her consent except on grounds of fraud or misrepresentation. He advanced arguments based on the said particulars in his brief. I have carefully examined the judgments of the court below and of the trial court. I have also examined the pleadings of the parties and the evidence on record. Neither of these issues was raised therein. Specifically, neither of these issues formed the ratio of the decision of the lower court now appealed against. They are being raised before this Court for the first time without leave. The appellant is not entitled to do so. This court held thus in: Orunengimo & Anor. Vs Egebe & Ors. (2008) ALL FWLR (Pt.400) 655 @ 671 C – D:

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“The parties in a case and the court are bound by the issues submitted for trial and remain so bound from the court of trial to the final appellate court. An issue not raised in the pleadings and therefore not tried at the court of trial cannot be raised at the appellate court through the ingenuity of counsel.” See also: Balogun Vs Adejobi (1995) 1 SCNJ 242; (1995) 2 NWLR (Pt.376) 131; Olatunji Vs Adisa (1995) 2 SCNJ 90; (1995) 2 NWLR (Pt.376) 167.

The submissions of learned counsel for the appellant in respect of these two sub-issues raised without leave are accordingly discountenanced. The only issue to be determined under this issue is whether the two courts below were correct in their finding that the 1st respondent was the lawful wife of the deceased at the time of his death. As submitted by learned counsel for the respondents, the following facts are not in dispute:

That the 1st respondent and the deceased were married under the Marriage Act in London in 1958.

That on 30/9/96 the High Court of Anambra State sitting at Onitsha granted a decree nisi dissolving the said marriage.

iii. That the deceased died intestate in Onitsha, Anambra State on 31/10/96 before the decree nisi could become absolute.

The relevant provisions of the Matrimonial Causes Act are Section 58(1) (b) and (4), which provide:

“58. (1) Subject to this section, where in relation to a decree nisi –

(b) Section 57 of this Act does not apply, the decree nisi shall become absolute by force of this section upon the expiration of a period of three months from the making of the decree.

(4) A decree nisi shall not become absolute by force of this section whether either of the parties to the marriage has died.”

The law is settled that in construing the provisions of a statute, where the words are clear and unambiguous they must be given their natural and ordinary meaning, except where this would lead to absurdity or injustice. See: Olanrewaju v. Governor of Oyo State (1992) 11 – 12 SCNJ 92; Ahmed v. Kassim (1958) 3 FSC 51; (1958) SCNLR 28; Agbaje v. Fashola (2008) ALL FWLR (Pt.443) 1302.The provisions of the Matrimonial Causes Act reproduced above do not qualify a decree nisi as one obtained by consent or otherwise. The court and indeed learned counsel are not entitled to read into a provision what it does not contain nor to interpret the provision in such a way as to conform with the court’s or counsel’s view of what they consider the law should be. See: A.G. Federation v. Guardian Newspapers Ltd. (1999) 9 NWLR (Pt.618) 187 @ 264; Adewunmi v. A.G. Ekiti State & Ors. (2002) 1 SCNJ 27 @ 50.

The court below made the following finding at pages 250 – 251 of the record:

“From the state of the pleadings before the lower court it appears settled that the decree 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 Section 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 Ibo 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 Ss, 33, 35, 39 (1) and 58 of the Matrimonial Causes Act. In effect the lawful marriage between the 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 [the] deceased’s surviving lawful wife. The truth is that Appellant was never 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 to 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.”

The argument of learned counsel for the appellant that the three month period provided for by section 58 (1) (b) of the Matrimonial Causes Act for the decree nisi to become absolute could be waived or is inapplicable where the decree nisi was obtained by consent of the parties is, with due respect to learned counsel, misconceived. Section 58 (4) of the Act clearly states that a decree nisi shall not become absolute by force of the section where one of the parties has died. The finding of the two courts below that the 1st respondent was still the lawful wife of the deceased, the decree nisi granted on 30/9/96 not having become absolute at the time of his death on 31/10/96 and that the purported marriages contracted with the appellant while his marriage to the 1st respondent subsisted could not have been lawful, cannot be faulted. This issue must therefore be and is hereby resolved against the appellant.

Issue 3

The final issue for determination is whether the learned Justices of the Court of Appeal were right when they held that the order or directive of the learned trial Judge that the Appellant be “arrested”, “charged”, “tried” and “convicted” for bigamy was a passing remark and therefore not appealable.

In support of this issue, learned counsel for the appellant submitted that notwithstanding the fact that the claims before the trial court were in respect of a probate matter and therefore civil in nature, the learned trial judge held inter alia in the course of his judgment:

“There is no doubt that the defendant herein has breached the provision of the applicable relevant law in this judgment and thereby has committed an offence for which she should be arrested, charged, tried and convicted accordingly… Again, by contracting both marriages with the deceased during the subsistence of his marriage with plaintiff the defendant has breached Section 39 of the Marriage Act. She ought therefore to be charged and tried and convicted for bigamy under the said Act as she herself had provided enough evidence in this proceeding to charge her.

…. 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 [Marriage Certificate] 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 for committing an offence under Section 39 of the Marriage Act.” (See pages 67 and 69 of the record)

Learned counsel disagreed with the finding of the Court of Appeal that the above statements were mere passing remarks and therefore not appealable. He argued that the statements expose the appellant to arrest prosecution, conviction and incarceration and thereby constitute a grave danger to her liberty. He submitted that in the circumstances the appellant has a right of appeal as provided for by Section 241 (1) (f) (i) of the Constitution of the Federal Republic of Nigeria (CFRN) 1999. He argued that the decision binds a lower court as well as a court of co-ordinate jurisdiction. He submitted that the crime of bigamy was never in issue in the proceedings before the trial court. He submitted that that where the commission of a crime is alleged in civil proceedings it must be proved beyond reasonable doubt. He proceeded to examine Section 39 of the Marriage Act in relation to the evidence on record and submitted that the offence created thereunder is limited to marriage contracted under the Marriage Act and that in any event the alleged offence was not proved. He urged this court to resolve this issue in the appellant’s favour.

In reply to the submissions of learned counsel for the appellant, learned counsel for the respondents submitted that the arrest and prosecution of the appellant was not part of the case of either of the parties at the trial court and was not made an issue before the court. He submitted that in the circumstances, the remark of the learned trial Judge did not arise from the pleadings or evidence of the parties. He urged the court to uphold the decision of the court below on the authority of Boothia Maritime Inc. Vs Fareast Mercantile Co, Ltd. (2001) 9 NWLR (Pt.719) 572.

As stated earlier in this judgment, a ground of appeal must relate to the decision appealed against and should be a challenge to the validity of the ratio decidendi of the decision reached. The ratio decidendi means “the reason for deciding” or the reasoning, principle or ground upon which a case is decided. The legal principle formulated by the court, which is necessary in the determination of the issues raised in the case, in other words the binding part of the decision is its ratio decidendi, as against the remaining parts of the judgment, which merely constitute obiter dicta. See: Afro Continental (Nig.) Ltd. vs Ayantuyi (1995) 9 NWLR (Pt.420) 411 @ 435 D – E; Saude Vs Abdullahi (1989) 4 NWLR (Pt. 116) 387 @ 429 & 431: UTC (Nig.) Ltd. vs Pamotei (1989) 2 NWLR (Pt.103) 244 @ 293.

An obiter dictum is a statement made in passing, which does not reflect the reasoning of the court or ground upon which a case is decided. See: Odunukwe Vs Ofomata (2010) 18 NWLR (Pt.1225) 404; AIC Ltd. Vs NNPC (2005) 11 NWLR (Pt.937) 563 @ 589.

In the instant case, it is quite evident from the pleadings of the parties that the issue for determination before the trial court was who as between the parties was entitled to the grant of letters of administration in respect of the estate of the deceased. There were no divorce proceedings or criminal charges pending before the court. The ratio decidendi of the judgment of the trial court, which was affirmed by the Court of Appeal was that the appellant herein was not entitled to the relief sought as she was not the lawful wife of the deceased intestate at the time of his death. The opinion and subsequent directive of the court regarding the charge, prosecution and conviction of the appellant for the offence of bigamy were therefore not based on the pleadings or any other issue in contention between the parties. The learned trial judge clearly went outside the case before him in this regard. The remarks constitute obiter dicta and cannot form the basis of an appeal. See: Boothia Maritime Inc. v. Fareast Mercantile Co. Ltd. (2001) 9 NWLR (Pt.719) 572 @ 590 G; Balonwu v. Gov. Anambra State (2009) 18 NWLR (Pt.1172) 13. I am therefore of the considered view that the learned Justices of the lower court were right to discountenance the submissions made in respect thereof. This issue must also be and is hereby resolved against the appellant.

In conclusion, I hold that this appeal is entirely lacking in merit. It fails and is hereby dismissed. The parties shall bear their respective costs in the appeal.


SC. 135/2005

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