Princewill Okechukwu Chidera Ikwu V. Mrs. Ijeoma Mirabel Ikwu & Ors (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ITA GEORGE MBABA, J.C.A.(Delivering the Leading Judgment)

This is an appeal against the decision of Abia State High Court in Suit No. A/185/2011, delivered on 3/2/2014 by Hon. Justice C.O. Onyeabo, wherein the learned trial Court upheld the preliminary objection raised by the Defendants and struck out the Plaintiff?s Suit for having been commenced in- competently.

Appellant, as plaintiff, had filed the suit claiming, in the writ of summons, as follows:

1) An order directing the 1st defendant to allow the claimant to take custody of the two children of the marriage to wit:

1. Chinedu Daniel Okechukwu Nnanna, born on 22nd February, 2008 and
2. Chukwukadibia Stephen Okechukwu Nnanna,born on 28th September, 2009

2) An order setting aside the decision of 20th July 2011 made by the 2nd Defendant directing the claimant to provide for the welfare of the said children while custody of them remains with the 1st Defendant.

3) A perpetual injunction restraining the Defendants, their agents and others, howsoever, from further arrest and/or detaining the claimant in respect of the dispute between the claimant

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and 1st Defendant, regarding the custody and maintenance of the children of the marriage between the claimant and the 1st Defendant in order to coerce or force the claimant to carry out the decision of the 2nd Defendant.

(See page 1 of the Records of Appeal)

The Respondents, on 12/4/13, filed a preliminary objection, to which was attached a written address. The Appellant, in reaction, filed a written reply to oppose the preliminary objection. The motion was heard by the trial Court on 4/11/13, when Counsel for the parties adopted their written addresses. The trial Court, on the same date, 4/11/13, also heard and granted the Application by Defendants to file their statement of defence and deemed the statement of defence earlier filed as duly filed and served on the claimant.

Ruling on the Preliminary objection was made on 3/2/14, when the Lower Court said:

I am however, of the considered view that the claimant has not substantiated the choice of bringing this suit under the High Court Rules. The suit is not based on any civil wrong, breach of duty or personal injuries. It is not also based on allegation of fraud; it does not

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seek any declaration; it does not seek the construction of any written instrument and is clearly not a case for judicial review. I do not find therefore that it was properly commenced under the Abia State High Court (Civil Procedure) Rules, 2009. Since (sic) is evident that the claimant and the 1st Respondent had contracted a traditional marriage, the matter of custody of the children of their marriage will be best determined under the law guiding that marriage? The preliminary objection?, is hereby upheld, as I find that the said suit having been incompetently commenced, I lack the jurisdiction to hear same under the said Rules See pages 84-85 of the Records.