Mrs. Ifeanyi Obiozor V. Baby Nnamua (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

EMMANUEL AKOMAYE AGIM, J.C.A. (Delivering the Leading Judgment)

On the 13-9-2008 the appellant herein as plaintiff commenced suit No. 0/506/2006 in the High Court of Anambra State at Onitsha against the respondent herein as defendant claiming for –

1. A declaration that the plaintiff is the legal wife of the Ozodinaobi Amaechi Obiora Obiozor and as such entitled to his corporeal and incorporeal hereditaments at his demise.
2. A declaration that the plaintiff and her children are entitled to the estate of late Ozodinobi Amaechi Obiora Obiozor under the statute.
3. An order against the defendant to pay over to the plaintiff the rents of N30,000.00 already collected by defendant from the tenants at 37 Isiokwe Road, Onitsha.
4. An injunction restraining the defendant from collecting or continuing to collect rents from tenants at 37, Isiokwe road, Onitsha and also at 242, Ilogbo road, Ilogbo Ajangbadi, Lagos or one vacant plot at 920 road, Plot 770 Festac town, Festac Extension Lagos.
5. An Order of perpetual injunction restraining the defendant, her servants, agents, privies or anybody acting under or through her from entering, remaining, letting, leasing or in any manner interfering with the plaintiff s right enjoyment of her late husband’s corporeal and incorporeal hereditaments.

The writ of summons commencing the suit was accompanied by a statement of claim and the plaintiff s written statement on oath.

The defendant filed a statement of defence and counter-claim for –

a. Declaration that defendant is the only legally married wife of the late Ozodinobi Augustine Obiozor that lived with him until his death.

b. Declaration that Obiorah Obiozor and Augustine Nnamdi Obiozor being the only male issues born to late Ozodinobi Augustine Obiozor are entitle to inherit his landed property in accordance with Onitsha native law and custom that should guide the distribution of his estate.

c. An order of court setting aside the marriage certificate dated 16/1/1998 as null, void and of no effect.

d. Declaration that the marriage purportedly solemnized at the All Saint Cathedral Onitsha on the 14/7/73 between Ozodinobi Obiozor and the plaintiff is not marriage under the Act or recognized by any law in Nigeria.

e. Perpetual injunction restraining the defendants their privies, agents etc from meddling with the estate of late Ozodinobi Augustine Obiozor.

The statement of defence and counter-claim is accompanied by the written statement on oath of the defendant, Mrs. Onyeama Umeh and Bosah Chukwurah. The plaintiff filed a defence to the counter-claim. The plaintiff testified giving evidence in support of her case. The defendant testified and called two other witnesses. Following conclusion of the evidence, the trial court on the 6-5-2008 rendered judgment dismissing the plaintiff’s claim and granting the defendant’s counter-claim in part.

Dissatisfied with this judgment, the plaintiff on the 14-5-2008 commenced this appeal No. CA/E/264/2008 by filing a notice of appeal containing 10 grounds of appeal.

The appellant filed her brief of argument and the respondent filed her own brief. The appellant then filed a reply brief. Both sides adopted their respective briefs of argument.

The appellant in her brief of argument raised the following issues for determination-

1. Whether the appellant’s right to fair hearing was not breached by the refusal or neglect of the court to (a) hear the motion for amendment; (b) issue hearing notice for date of closing address and (c) deliver judgment within three months without parties re-adopting their addresses? (Ground 7, 11 and 12).
2. Whether there was sufficient evidence from which a valid marriage can be presumed between the appellant and the deceased? (Grounds 1, 2, 3).
3. Whether the respondent established her marriage to the deceased under native law and custom. (Grounds 4, 5 and 8).
4. Whether the children of the deceased by the appellant were not wrongly excluded from the deceased’s estate? (Ground 6)
5. Whether on the totality of the evidence the judgment was not erroneous and liable to be set aside? (Grounds 9 and 10).

The respondent in her own brief of argument raised the following issues for determination.