Mrs. Ebele Onyejiaka V. Achaegbuna Onyejiaka & Ors (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the Leading Judgment)

This appeal is against the judgment of the High Court of Justice, Anambra State, Awka Judicial Division (hereafter simply referred to as “the lower court”), presided over by the Honourable Justice M.I. Onochie (hereafter simply referred to as “the learned trial Judge”) delivered on 2/11/2007 in Suit No: A/137/2006. In the judgment, the claims of the Plaintiff (hereafter simply referred to as “the Appellant”) were dismissed in their entirety; while the reliefs sought by the Defendants (hereafter referred to as “the Respondents”) in their counter-claim were granted in part.

Before the lower court, parties filed and exchanged pleadings. The 7th Defendant (hereafter simply referred to as “the 7th Respondent) was not a party in the case at its commencement. She was joined as a party in the case on 6/11/2006, pursuant to the order of the lower court that “she is to defend the action by her next of kin Madam Gold Onyejiaka”. The facts of the case as narrated by the Appellant is to the effect that late Barrister Ike Onyejiaka (hereafter simply referred to as “late Onyejiaka”) married the 4th Defendant (Nkiru Uchendu) (nee Onyejiaka) (hereafter to be referred to as “the 4th Respondent”) under the Marriage Act and the marriage was blessed with one issue, Ms. Chisom Onyejiaka, the 7th Defendant (hereafter to be referred to as “the 7th Respondent”).

The marriage between late Onyejiaka and the 4th Respondent later broke down and late Onyejiaka filed a petition for the dissolution of the marriage at the High Court, Awka, which after hearing the petition issued an order nisi for the dissolution of the marriage between late Onyejiaka and the 4th Respondent. The 4th Respondent lodged an appeal against the order of dissolution of the marriage and while the appeal was still pending, late Onyejiaka married the Appellant under the Marriage Act. The appeal lodged by the 4tn Respondent was not disposed of before the date of death of late Onyejiaka.

The lower court in its judgment held among others, that by reason of the fact that the appeal against the decree nisi was still pending when Onyejiaka died, the previous marriage he had with the 4th Respondent was still subsisting as at the time he died notwithstanding the order nisi. The Appellant instituted the instant case before the lower court against the Respondents (some of who are the siblings, former wife, and daughter of late Onyejiaka claiming against them jointly and severally, the reliefs set out in paragraph 27 of the statement of claim, namely:-

“a. A declaration that the plaintiff as the lawful wife of late Ike Onyejiaka is entitled to the Letters of Administration of the estate of the late Ike Onyejiaka.

b. An order of Court setting aside the sale of late Ike Onyejiaka’s land at Agu Oye Umudioka Village, Awka, measuring 2 plots.

c. An order of Court mandating the 5th defendant to return to the plaintiff the said two cars belonging to late Ike Onyejiaka now in his (5th Defendant’s) possession.

d. An order on the 6th defendant to issue Letters of Administration of late Ike Onyejiaka’s estate to the plaintiff and Sunday Onyejiaka.

e. Perpetual injunction restraining the 1st – 3rd Defendants from meddling in and selling late Ike Onyejiaka’s properties.”

In their Statement of Defence dated 14/10/2006 and filed on 19/10/2006 (and which contained a counter-claim), the Respondents resisted the case set up by the Appellant in the statement of claim and also counter-claimed against the Appellant for the following reliefs: –

“(a) Declaration that the 6th defendant, the probate Registrar, Awka High court, is entitled to issue Letter (sic) of Administration in respect of the estate of late Barr. Ike Onyejiaka to his only surviving issue, Miss Chisom Onyejiaka.

(b) Declaration that any Marriage certificate being paraded by the plaintiff in respect of her purported marriage to late Barr. Ike Onyejiaka is not authentic and or was obtained irregularly and therefore, null and void.

(c) Declaration that in marriage under the statute a party that wins at the High court is restrained from contacting another marriage during the pendency of an appeal over the verdict so that the eventual success of the appeal would not be rendered nugatory by the supervening subsequent marriage.