OBIOHA & ORS v. OBIOHA

CITATION: (2016) LPELR-40072(CA)

In the Court of AppealIn the Owerri Judicial Division

Holden at Owerri

ON FRIDAY, 15TH JANUARY, 2016Suit No: CA/OW/359/2010

Before Their Lordships:

IGNATIUS IGWE AGUBE Justice, Court of AppealITA GEORGE MBABA Justice, Court of AppealFREDERICK O. OHO Justice, Court of Appeal

BetweenCHIEF SOLOMON OBIOHAPASTOR CHIDI OBIOHAMADAM MONICA OBIOHAMRS. ELIZABETH CY NWUKEMR. CY NWUKE

- Appellant(s)

AndMRS. IFY OBIOHA - Respondent(s)

RATIO DECIDENDI

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1 ACTION - PLEADINGS: Whetherpleadings can contain evidence"Appellants Counsel seem to haveforgotten that under the rules of pleadingsparties do not plead evidence but just thefacts. The Supreme Court in the case ofOJUKWU vs. YAR ADUA (2009) 12 NWLR(PT.1154) 50 per TOBI, JSC (as he thenwas) had this to say on the issue;"Facts are the fountain head of pleadings asthey are the basis of pleadings. That givesrise to the definition of pleadings asstatements of fact. A party cannot leadevidence on a fact not pleaded. SeeOKPALA vs. IHEME (1989) 2 NWLR (PT.102) 208; SPDC LTD vs. NWAWKA (2003) 6NWLR (PT. 815) 18.The primary function of pleadings is todefine and delimit with clarity andprecision the real matter in controversybetween the parties upon which theyprepare and present their respective casesand upon which the Court will be called toadjudicate between them. See ATOLAGBEvs. SHORUN (1985) 4 S.C. (PT. 1) 250."�Per OHO , J.C.A. (Pp. 29-30, Paras. E-D) -read in context

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2 JURISDICTION - JURISDICTION OF THESTATE HIGH COURT: Jurisdiction of StateHigh Court over letter of administrationissued outside the State"In any case, the attitude of this Court inrespect of issues of this nature is thatwherever the Respondent applied to forthe grant of a letter of Administration isusually of no consequence. This Court, perAUGIE, JCA had this to say in the caseBALOGUN V. AGBARA ESTATES LIMITED(2007) LPELR-8794 (CA);"It is well settled that the High Court of aState has jurisdiction to entertain an actionarising from the administration of theestate of a deceased person who diedintestate notwithstanding that the Lettersof Administration is in respect of propertieswithin the State while the Estate includesproperties outside the State- see SALUBIvs. NWARIAKU (2003) 7 NWLR (PT.819)426; AMOBI vs. NZEGWU (2005) 12NWLR (PT. 938) 120 & OKONYIA vs.IKENGAH & ORS (Supra)."Per OHO , J.C.A.(P. 32, Paras. B-E) - read in context

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3 PRACTICE AND PROCEDURE - RULESOF COURT: Effect of non-compliance withrules of Court"The settled position of the law is that non-compliance with rules of Court will notnecessarily result in the setting aside of ajudgment of Court especially where it isadequately demonstrated that copioussteps were taken by the party complainingabout the breach of the rules which he hassince waived."Per OHO , J.C.A. (Pp. 33-34,Paras. F-B) - read in context

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4 PRACTICE AND PROCEDURE - PRE-TRIAL CONFERENCE: Essence of a pre-trial conference"What should probably be borne in mind isthe fact that the pre-trial conference is arecent addition to the regime of lawsgoverning the new set of civil procedurerules of the High Court system in Nigeria,and that it is only meant to speed up thehitherto comatose civil trials which wereconducted under rules which had outlivedtheir usefulness due to failures to keeppace with the fast tempo of modern dayc o m m e r c i a l a n d o t h e r c i v i ltransactions."Per OHO , J.C.A. (P. 34, Paras.D-F) - read in context

5 PRACTICE AND PROCEDURE - RULE OFPRACTICE AND PROCEDURE: Effect ofbreach of rule of practice"Besides all of these, the breach of a ruleof practice can only render a proceedingirregularly conducted and not a nullity. Seethe case of GAMBARI vs. BUHARI (2009)ALL FWLR (PT. 479) 458 AT 501."Per OHO ,J.C.A. (P. 35, Para. A) - read in context

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FREDERICK O. OHO, J.C.A. (Delivering the LeadingJudgment): In the High Court of Imo State of NigeriaHolden at Orlu Judicial Division, Judgment was delivered onthe 21-6-2010 in suit No. HOR/149/2008 in favour of thePlaintiff/Respondent when learned trial Judge granted theClaims of the Plaintiff and awarded in her favour the rightto take control and manage her deceased husband'��sestate to be included in a letter of administration to whichCourt declared she was qualified to apply for. The Courtalso ordered the 2nd Defendant to render an account of allrents collected and proceeds from D85 Head Bridge to theClaimant and her Children and a restraining Order againstthe Defendants, their agents, servants etc. from interfering,confiscating, controlling or laying claims over any propertythat constituted the estate of the claimant�s deceasedHusband. The Respondent as Plaintiff commenced this suitby writ of summons filed on the 20-8-2008 and by aStatement of claim dated 28-1-2009 at paragraph 17claimed the following:"��17. WHEREFORE the Plaintiff claims against theDefendants jointly and severally:1. A DECLARATION that the

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Plaintiff by virtue of her marriage to the deceased and sole

partner in the acquisition of all property that constitutes

the estate of the Husband is entitled to the control,

management and application for letters of administration.

2. A Declaration that the Plaintiff is entitled to the

Ownership and control of all properties listed on paragraph

7 of this claim to the exclusion of all the defendants who

may only advise.

3. A Declaration that the 2nd Defendant renders account of

all rents collected and proceeds from D85 bridgehead be

declared to the Plaintiff�s and the Children.

4. Perpetual Injunction restraining the Defendants their

agents, servants or privies from interfering, confiscating,

controlling or laying claim over any property that

constitutes the estate of the plaintiff�s Husband.

The Defendant/Appellant herein denied the claims of the

Plaintiff/Respondent through the filing into Court of a

Statement of defense dated the 19-3-2009 and filed same

date.

Parties fielded their witnesses in the trial and at the close

of hearing learned Counsel addressed Court extensively,

citing a plethora of decided cases. The learned trial Judge

delivered

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its Judgment on the 21-6-2010 giving judgment in favour of

Plaintiff/Respondent.

Dissatisfied with the judgment of the lower Court the

Defendants/Appellants have appealed to this Court vide an

original Notice of Appeal dated 28-6-2010 and filed on

1-7-2010 containing a Ground. However, by an application

to that effect, the Appellant sought the leave of Court which

was granted and the original Notice of Appeal was

amended allowing for the filing of an Additional Eight (8)

Grounds of Appeal bringing it all to nine (9) which without

their particulars are reproduced as follows;

GROUNDS:

1. The learned trial judge erred in law when he assumed

jurisdiction in this suit.

2. The learned trial judge erred in law in entertaining the

suit, subject matter of this Appeal when it lacked the

jurisdiction to do so.

3. The trial High Court 2, Orlu Imo State erred in law to

have chosen without any reason one out of the two

separate statements of claim filed by the Plaintiff without

first inviting any addresses by the parties Counsel despite

the argument without any reason of the trial High Court in

his judgment that the reliefs in the 1st statement of claim

“were however

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overtaken by the reliefs in the claimant’s statement of

claim dated and filed on 12th of February, 2009.”

4. The trial High Court erred in law to have given judgment

to the plaintiff based on the pleadings only and unproved

facts.

5. That the trial High Court was biased when he pre-

empted his judgment in the suit when he made the

pronouncement in a ruling concerning the material issues

in dispute in the substantive suit whereas the parties have

not testified by adopting their depositions and possibly

cross examined, did not conduct pre-trial conference and

even interfered by debarring the claimant from answering

material questions during her cross-examination.

6. That the claimant has no locus standi to institute the suit

which is a probate action.

7. The trial High Court erred in law to have held that the

marriage between the claimant and Victor Obioha (the

deceased) was subsisting by the time the action was

commenced.

8. That the trial High Court erred in law to have admitted

evidence at variance with the pleadings.

9. The trial High Court erred in law to have given judgment

to the plaintiff not based on evidence but on the pleadings.

Parties filed and

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e x c h a n g e d b r i e f s o f a r g u m e n t . I n t h e

Defendant/Appellants� (hereinafter called; �the

Appellants�), brief of argument was settled by Mrs. N. D.

Iwu dated 31-7-2013 and filed 14-8-2013. Three (3) issues

were nominated for the Court�s determination to wit:

1. Whether the lower Court was right in holding that

the marriage between the respondent and her

deceased husband was a Christian marriage as

recognized by the Marriage Act, Cap M6., LFN, 2004?

2. Whether the lower Court had the jurisdiction to

make pronouncements as to the entitlement of items

of property lying and situate outside its territorial

jurisdiction?

3. Whether the lower Court lacked the requisite

jurisdiction to determine this suit without conducting

a pre-trial conference which is a pre-condition to the

exercise of the jurisdiction by Court in this case?

The Plaintiff/Respondent�s (hereinafter called; �the

Respondent�) brief of argument was settled by Justice A.

David, Esq., who adopted the issues nominated by the

Appellant herein and upon which he also addressed Court.

For this reason this Court shall also adopt the issues

nominated by the Appellant in

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determining this Appeal.

ARGUMENTS OF APPELLANT’S COUNSEL

ISSUE ONE;

Whether the lower Court was right in holding that the

marriage between the respondent and her deceased

husband was a Christian marriage as recognized by

the Marriage Act, Cap M6., LFN, 2004?

It was the submission of learned Appellant’s Counsel that

the lower Court was wrong in holding that the marriage

between the respondent and her deceased husband was a

Christian marriage as recognized by the Marriage Act Cap

M6 LFN 2004. Counsel referred Court to Section 21 of

the Marriage Act Cap M6 LFN 2004, as it relates to the

celebration of marriage which provides as follows:

“Marriage maybe celebrated in any licensed place of

worship by any recognized minister of the church,

denomination or body to which such place of worship

belongs and according to the rites or usages of

marriage observed in such church, denomination or

body: provided that the marriage be celebrated with

open doors between the hours of eight o’clock in the

forenoon and six o’clock in the afternoon, and in the

presence of two or more witnesses besides the

officiating minister”.

It was the argument

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of learned Counsel that Section 21 of the Marriage Act

in essence spells out factors which constitutes a valid

Christian marriage as recognized by the law. He argued

further that a Christian marriage as recognized by the Act

is to be celebrated in a licensed place of worship by a

recognized minister of the church, denomination or body to

which such place of worship belongs, in accordance with

the rites or uses of marriage observed in such church,

denomination or body. As far as Counsel is concerned to be

valid, the marriage shall be celebrated with open doors

between the hours of eight o’clock in the forenoon and six

o’clock in the afternoon, and in the presence of two or more

witnesses besides the officiating ministers. Counsel cited

the case of IJIOMA vs. IJIOMA (2009) 12 NWLR (PT.

1156) 593 AT 608 – 608.

Counsel contended that anyone desirous of establishing

that a marriage is a Christian marriage recognized by the

Act must show that the marriage so contracted complied

with the provisions of Section 21 of the Marriage Act. In

addition, Counsel said that to prove compliance with the

provisions of Section 21 of the Act, every certificate of

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marriage filed in the office of the registrar of marriages of

any district, or any copy thereof purporting to be signed

and certified as a true copy by the registrar and every entry

in a marriage registrar'��s book or copy thereof certified

shall be admissible as evidence of the marriage to which it

relates in any Court of law. See IJIOMA vs. IJIOMA

(supra) pg. 599.

It was further contended by Counsel that a celebration of

marriage in a church which does not comply with the

provisions of Section 21 of the Act is at best a mere

church blessing. In the instant case, he argued, that the

learned trial Judge based his judgment on the evidence led

by the respondent as to the type and status of the marriage

she contracted with the deceased where she said at page

176 of the records of Appeal as follows;

"��I wedded at the church on 12th April 1997 being a

Saturday and on Monday 14th April 1997 my husband took

me to the marriage registry at Kano State where I signed

documents relating to our marriage."

Learned Counsel said that apart from the fact that the

Respondent said that she went to the said marriage registry

only with the husband, that the evidence led on

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facts were not pleaded by the Respondent. Counsel

submitted that evidence led on facts not pleaded goes to no

issue. He cited the case of NATIONAL INVESTMENT

PROPERTIES CO. LTD. vs. THE THOMPSON

ORGANISATION LTD. (1969) NWLR AT 104 on the

issue. Counsel said that the trial judge erred in relying on

the case of SALIMOTU COKER & 5 ORS vs. ALFRED

BABATUNDE COKER & ANOR. VOL. 17 NLR R55 &

OLOWU vs. OLOWU (1985) 3 NWLR (PT. 13) 372 to

hold that the Respondent having contracted a Christian

marriage, the deceased estate is subject to English Law for

the purpose of distribution of his estate upon intestacy.

It was also argued by Counsel that the two cases cited

above are distinguishable from the instant case. He said

that in the former, the marriage contracted by the parties

were Christian marriages as recognized by the marriage

Act while in respect of the latter, he argued that the

marriage celebrated between the respondent and the

deceased was not a Christian marriage recognized by the

Marriage Act, but was rather, a mere church blessing,

different from a Christian marriage recognized by the Act.

It was further contended by Counsel that a fact not proved,

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even if pleaded will go to no issues. He cited the cases of

AGALA vs. OKOSIN (2010) 10 NWLR (PT. 1202) 412

AT 436; EMEGOKWE vs. OKADIGBO (1973) ALL NLR

314 in support. Learned Counsel also contended that the

respondent neither pleaded nor led evidence to show that

the items of property subject matter of the dispute were

jointly acquired by her and the deceased. In addition,

Counsel said that the respondent neither pleaded nor

showed in evidence that by her type of marriage, she is the

sole survivor to her deceased husband’s estate having

instituted this action in her personal capacity. Counsel

urged this Court to resolve this issue in favour of the

Appellants.

ISSUE TWO;

Whether the lower Court had the jurisdiction to make

pronouncements as to the entitlement of items of

property lying and situate outside its territorial

jurisdiction?

Counsel submitted that the lower Court had no jurisdiction

to adjudicate over items of property lying and situate

outside its territorial jurisdiction and to make

pronouncements of entitlement of ownership control and

management. He referred Court to Order 2 Rule 1 of the

High Court of Imo State (Civil Procedure) Rules 2008

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which provides as follows:

"��All suits relating to land or any mortgage or

charge on or any other interest or injury to land and

also all actions relating to personal property detained

or seized for any cause, shall be commenced and

determined in the judicial division in which the land

is situated, or the distraint or seizure took place."

Against this background, Counsel drew attention to the

locations of the properties involved in the instant suit,

which included the shops at Onitsha at No. D 85 and M

Line Head Bridge Onitsha and two Plots of land in Okpoko

in Anambra State and a large portion of land behind the

said duplex. Counsel also drew attention to a parcel of land

at Umuezikeukwu Uba Umuaka a five-storey building at No.

12 Adofi Street, Onitsha. Counsel further submitted that by

virtue of Order 2 Rule 1 of the High Court of Imo State

(Civil Procedure) Rules 2008, the Respondent instituted

the suit in the wrong jurisdiction which is outside the lex

situs. Counsel urged Court to resolve Issue No. 2 for

determination in favour of the Appellants.

ISSUE THREE:

Whether the lower Court lacked the requisite

jurisdiction to determine this suit

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without conducting a pre-trial conference which is a

pre-condition to the exercise of the jurisdiction by

Court in this case?

The submission of learned Counsel on this issue is that the

lower Court lacked the requisite jurisdiction to determine

this suit without conducting a pre-trial conference which,

he said is a pre-condition to the exercise of the jurisdiction

by the Court. In putting this in another way, he said that

the pre-trial Conference is a condition precedent to the

exercise of such jurisdiction and that where the lower

Court is found not to have the jurisdiction to hear and

determine the relevant proceedings in this case, then

whatever it had decided becomes null and void however

well conducted or determined. Counsel said that from the

records of appeal no pre-trial conference was shown to

have been held.

In support of this argument, Counsel cited the cases of

OKEREKE vs. YAR’ADUA (2008) 12 NWLR (PT. 1100)

PG. 127 (PARAS. E – F) and MADUKOLU vs.

NKEMDILIM (1962) 2 SCNLR 34 in support. Counsel

argued that there is non-compliance with due process of

law in this case. He referred Court to the case of SAUDE

vs. ABDULLAHI (1989) 4 NWLR (PT.

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116) 387 AT 421 - 422 AT 422 where the SupremeCourt held as follows:"��There is non-compliance with due process of lawwhen the procedural requirements have not beencomplied with or the preconditions for the exercise ofjurisdiction have not been complied with in such acircumstance as in the other, the defect is fatal to thecompetence of the trial Court to entertain the suit.This is because the Court will in such a situation notbe seised with jurisdiction in respect of the action."

Learned Counsel referred to the provisions of Order 25Rule 1(1) and (2) of the Imo State High Court (CivilProcedure) Rules 2008 which he said provides for theconvening of a pre-trial Conference and that the saidprovisions clearly makes a pre-trial conference mandatoryand not optional. He added that the legislation makes apre-trial conference not only important but also acondition precedent to the exercise of the requisitejurisdiction of the Court. Counsel urged this Court toresolve Issue No. 3 in favour of the Appellants.

ARGUMENT��S OF RESPONDENT'��S COUNSEL.ISSUE ONE;In answer to the submissions made by learnedAppellant��s' Counsel

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learned Respondent�s Counsel said that the Respondent

remained the only wife of the deceased Victor Obioha, the

management of whose estate is now in dispute. Counsel

said that the Respondent in her statement of Claim averred

that she was the only legitimate wife of her husband until

his demise. He referred Court to page 33 paragraphs 3 of

the records of appeal. According to learned Counsel, this

averment was not denied by the Appellants, which means

that the Appellants admitted that the Respondent was the

only legitimate wife of her husband.

It was the submission of learned Counsel that the Court is

entitled to rely on un-contradicted evidence as in the

instant case. He cited the case of NIRCHANSDANI vs.

PINHEIRO (2001) FWLR (Pt. 48) 1307 CA. He

submitted in this correction, that, that which is admitted

does not require further proof by evidence, whether

documentary or oral. See the cases of AGBANELO vs.

UBN LTD. (2000) 4 SC (PT. 1) 233; AKPAN vs. UMOH

(1999) 11 NWLR (PT. 627) 349 SC.

On the question of whether the Respondent needed to have

established the nature of her marriage to the deceased

Victor Obioha, learned Counsel submitted that the

Respondent

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does not need to produce any documents to show that there

was a valid and subsisting marriage between her and her

husband until his demise. He referred Court to Section

125 of the Evidence Act, 2011, which provides thus;

��all facts except the contents of documents, may be

proved by oral evidence��. Counsel also cited the case of

OGU vs. M. I. & M. C. S. Ltd. (2011) 8 NWLR (Pt.

1249) 345 in support.

Learned Counsel argued that the subject matter of Suit No.

HOR/149/2008 and of this appeal is management of the

estate of the Respondent�s late husband and not the

validity of the marriage entered into between the

Respondent and her late husband. He emphasized that the

suit at the lower Court and in this appeal are not grounded

under the Matrimonial Causes Act in which the Respondent

is saddled with the responsibility of pleading and proving

the place where the Respondent celebrated her marriage

with her late husband. Counsel added that the failure of the

Respondent to plead the marriage certificate of the

marriage between her and her late husband does not in any

way nullify the marriage between the Respondent and her

late husband or vitiate this

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action which was instituted to retrieve the late husband’s

property from the Appellants. Counsel also argued that the

facts of the marriage contracted under the marriage Act

notwithstanding, the parties also contracted a valid

marriage under native laws and custom.

According to learned Counsel, in the case of AYO vs.

STATE (2010) All FWLR (530) 1377 at 1384 CA the

Court of Appeal has said that, by the provisions of

Section 2 of the Evidence Act, the words ‘wife’ and

‘husband’ means wife and husband of a monogamous

marriage. It was further contended by Counsel that there

was no law which bars the Respondent from instituting an

action in respect of her late husband’s estate in her

personal capacity being the only wife of her late husband

and on behalf of her four children, who are the only

children of her late husband. Counsel said that the

Respondent has been in custody of the children and had

been the only one taking care of the children’s welfare ever

since the death of her husband.

It was also contended that where the Christian Marriage

celebrated by the Respondent and her deceased husband

does not comply with the

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provisions of the Marriage Act, that in itself is not enough

reason to invalidate the marriage as the only act(s) that can

invalidate the marriage is/are those contained in Section

33(2) of the Marriage Act which provides as follows.

"��But no Marriage shall, after celebration, be

deemed invalid by reason that any provision of this

Act other than the foregoing has not been complied

with." Counsel urged the Court to resolve issue one in

favour of Respondent.

ISSUE TWO;

Learned Counsel sought to make a clarification in this case.

He contended that the nature of the dispute between the

parties in this case, was grounded solely on the

management of the properties constituting the estate of the

Respondent�s late husband and no more. He said that all

properties owned by the Respondent�s late husband

irrespective of where they are situated collectively

constitute the estate of the Respondent�s late husband.

According to learned Counsel, what is in dispute in this suit

is not the question of ownership of the properties of the

estate of late Victor Obioha, the Respondent�s deceased

husband, but the question of management of the

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properties, that is, who should be in charge or entitled to

the management of the estate of late Victor Obioha. For

this reason, learned Counsel argued that the trial Court

therefore, had the jurisdiction to make pronouncements on

those properties which are subject of the estate of

Respondent’s deceased husband. In his arguments, Counsel

said that the Appellants never at any time disputed the

ownership of the said properties and therefore, need not be

a subject of dispute in this case.

Learned Counsel also submitted that where the question of

mode of marriage is not found to be Christian marriage,

that does not give the Appellants priority in respect of the

estate of the Respondent’s deceased husband over the

Respondent and her children. He cited the case of

OBUSEZ vs. OBUSEZ (2007) 10 NWLR (PT. 1043) in

support. Counsel urged this Court to resolve this issue in

favour of the Respondent.

ISSUE THREE;

It was the contention of learned Respondent’s Counsel that

a pre-trial conference was conducted by the lower Court.

He said that at the close of pleadings, pre-trial papers were

exchanged by both parties to the suit at the lower Court. In

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compliance with Order 25 Rules 1(1), (2) & (3) of the

Imo State High Court (Civil Procedure) Rules 2008,

Counsel said that the claimant’s (now Respondent) Counsel

applied for pre-trial papers to be issued and same were

issued. He drew attention to pages 112-115 of the Printed

Records where the application for pre-trial forms and the

pre-trial forms issued are contained. Learned Counsel also

said that the defendants (now Appellants) answers to the

pre-trial questions are contained at page 128 of the

Records of Appeal.

Counsel further said that at the trial Court, pre-trial papers

were duly issued and answers to pre-trial questions were

filed. He emphasized that there was nothing that was

meant to have been done at the pre-trial conference that

was left undone. Learned Counsel told Court that the

matter was fixed for pre-trial conference on the 21st day of

2009. But on that day Appellants Counsel brought an

application challenging the jurisdiction of the trial Court to

entertain the matter which then led to the adjournment of

the matter as the claimant (now Respondent) Counsel

needed time to react to the application. He referred Court

to page 204 of

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the Records of Appeal. According to Counsel, Ruling on the

application was given and pre-trial was fixed for a later

date and concluded before the matter proceeded to

hearing.

Learned Counsel said that one of the applications made by

the defendants’ (now Appellants) Counsel in his pre-trial

answers was that the matter proceeded to full hearing or

trial in order to determine the same issue, as contained at

page 128 of the Records of Appeal, no. 12. Counsel said

that having complied with the provision of Order 25 Rule

1(1) and (2), and every other things necessary, the matter

was then fixed for hearing on a date agreed upon between

the parties. Counsel submitted in the alternative that the

absence of pre-trial conference does not rob the Court of its

jurisdiction. He said that to insist on the issue, the way the

Appellants are doing is to rely on technicality in this appeal

which the superior Courts have often frowned against in a

plethora of decided cases. Counsel urged this Court to

resolve this issue in favour of the Respondents.

RESOLUTION OF APPEAL;

The need to give a resume of the facts of this case cannot

be over emphasized at least to provide the

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necessary background required for a proper understanding

of what transpired between the parties who are of the same

family and probably led to the sordid turn of events in the

matter before Court. The Respondent herein presented

herself an only wife of the deceased Victor Obioha. The

marriage between the Respondent and the deceased

produced four (4) children, three (3) boys and a girl. The

girl is the first born of the family.

Prior to the death of her late husband the couple had a

misunderstanding which was said to have been escalated

by the Appellants and their family members who are all

relations of the deceased Victor Obioha. The Respondent

was said to have been forced to vacate the matrimonial

home due to the antics and overbearing attitude of the

Appellants and other members of the family. All efforts

made by the Respondent in order to return to her

matrimonial home were said to been thwarted by the

Appellants. It is also the Respondent’s story that she was a

nursing mother when she was pushed out of the

matrimonial home by the Appellants as she had just given

birth to the last child of the family who was just under a

year old at the time.

The deceased,

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that is the Respondent’s late husband later fell sick and

died after several treatments to no avail and of a time when

the Respondent and her children were still literally on

“exile”. At the death of the Respondent’s husband the

Appellants were said to have confiscated the deceased’s

properties and monies of the Respondent’s late husband

including the Respondent’s and her children’s personal

belongings in the couple’s matrimonial home at Onitsha.

The Appellants were said not to have stopped at that as

they also accused the Respondent of being the person

responsible for the death of her deceased’s husband.

Consequently, the Respondent took out a civil action

against the Appellants at the Orlu Division of the Imo State

High Court in Suit No. HOR/149/2008 seeking the following

relief:

a. A declaration of Court that a clear examination be

carried out to prove the cause of death of the plaintiff’s

husband before burial.

b. An Order that all properties of the deceased with the

only legitimate wife (plaintiff) be released to the plaintiff

and the children.

c. A perpetual injunction restraining the

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defendants, their agents, privies, cohorts from interfering,

confiscating the properties of the deceased without

recourse to the deceased legitimate wife.

The suit was instituted prior to the coming into effect of the

Imo State High Court (Civil Procedure) Rules, 2008. And

the parties were appropriately on the 19th day of January,

2009 ordered to comply with the new rules. See page 169

of the Records of Appeal. Parties eventually led evidence at

the trial Court based on their new processes filed in

compliance with the new rules and in obedience to the

order of Court. At the conclusion of trial, the Court entered

judgment in favour of the Respondent which said judgment

the Appellants were dissatisfied with by lodging this appeal

in this Court, to have the judgment of the High Court of

Justice, Imo State sitting at Orlu given on the 21st day of

June, 2010 set aside.

However, on the part of the Appellants, the Respondent is

mostly seen as a villain, who was steeped in diabolism and

all sorts of wicked acts which eventually led to the death of

the said Victor Obioha, her husband. The Respondent was

said to have deserted the deceased Victor Obioha shortly

before he

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died and that she was high handed and cruel not only to the

relations of her deceased husband but also to her children

born in the union of the Respondent and the deceased. The

Appellants have therefore come before this Court to

contend that the Respondent was not married to the

deceased Victor Obioha under the Marriage Act. As far as

the Appellants were concerned, the marriage was merely

blessed in the Church and not contracted in accordance

with the Marriage Act.

In the judgment of the lower Court contained at 168 to 184,

it is instructive to note that the learned trial Judge

identified the operational statement of claim of the

Respondent as the one filed on the 12-2-2009 but dated

28-1-2009. See page 168 of the printed records of

proceedings at paragraph 3 line 7. This process is

contained at pages 33 to 35 of the records of proceedings.

It is rather worrisome to note, that at the lower Court, the

issue of the form of marriage contracted between the

Respondent and the deceased husband was never given all

the prominence the issue seem to have now attracted here

on Appeal. All that the Respondent as Plaintiff before the

lower Court said on the issue was only a

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fleeting mention in the passing at paragraph 10 of the said

statement of claim when she deposed as follows;

“The Plaintiff had commenced the application for the

Administration of Estate of her husband as required by law

in a monogamous marriage”.

On the part of the Appellants, the operational statement of

defense in the Court’s record is the one contained at pages

47 to 48 of the records of proceedings. The said statement

of defense is dated and filed on the 19-3-2009. It is also

instructive to note once again that all that was said about

the Respondent’s form of marriage with the deceased

Victor Obioha is contained at paragraph 1 where the

Appellants joined issues with the Respondent when they

averred as follows;

“The claimant is not a wife to the late Victor Obioha as at

the date of his death having deserted him without

complaint or remorse and enjoyed living as a ‘feme sole’.

They however had wedded under the customary law, had

the church bless that marriage but not under any statute,"

The findings of the learned trial Judge on the issue are as

interesting and as it’s instructive. See pages 177 to 178 of

the

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records of proceedings where the Court said;

“In this case, the parties are agreed on the following

fact, namely;

1. That the marriage between the deceased and the

claimant was a Christian Marriage.

2. That while the marriage lasted for 11 or 12 years or

more, that the deceased did not marry another

woman oe wife.

3. That the said Christian Marriage was celebrated on

12th April, 1997, while the deceased died in August

2008.

4. That the deceased had estates both at their viilage

Umuonyiriegbe Uba Umuaka in Njaba Local

Government Area of Imo State and Onitsha in

Anambra State.

5. That the marriage was survived by four children

three of whom are males.

6. That the claimant and not the defendants has been

in the custody of the said children even before the

death of the claimant’s husband.

7. That the DW2 (the second defendant in this

case)has on his admission been controlling and

managing the said estates of the deceased since the

death of his brother and that he had not known the

situation of his said deceased’s brother’s children

since then.

The question whether the above first three sets of

facts is demonstrative of monogamous marriages,

readily

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answered by me in the affirmative. I also add that

they connote equally an election outside the

customary cleavages by the deceased in relation to

his personal estate. In the case of SALAMORU COKER

& 5 ORS vs. ALFRED BABATUNDE COKER & ANOR

vol. 17 NLR 55, the Court held thus; ‘that the

intestate estate of a native who contracts Christian

marriage or civil marriage is removed from operation

of native law of succession and brought under

common law.’ And again, in the case of OLOWU vs.

OLOWU (1985) 3 NWLR (PT. 13) 372, the Supreme

Court stated thus; ‘where a person previously subject

to customary law undergoes a marriage celebrated

either by Christian rites or according to English law

or in accordance with the provisions of the marriage

Act he is deemed to have rendered himself subject to

English law for the purpose of distribution of his

estate upon intestacy’.

In the light of all the above authorities, the

conclusion I reach on this issue is that this case is not

one under customary law and therefore that a case of

desertion and divorce as made by Counsel to the

defendants do not arise for consideration and so the

case of NWANGWA

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vs. UBANI Supra is inapplicable to this case."��

I am simply unable to disagree with the learned trial judge

on this issue. The Appellant�s cannot in all sincerity

claim not to know that the status of the Respondent�s

marriage with her deceased's husband when from their

own showing, at paragraph 7.2.3. of the Appellant��s' brief

of argument, they acknowledged that the trial judge based

his judgment on the evidence led by the Respondent as to

the type and status of the marriage she contracted with the

deceased on her evidence given on facts at page 176 of the

records of proceedings where she said;

"��I wedded at the Church on the 12th April, 1997 being a

Saturday and on Monday 14th April, 1997 my husband took

me to the marriage registry at Kano State where I signed

documents relating to our marriage. She added that she

went to the said marriage registry only with the

husband"��.

It is, however, interesting to note that the only point of

observation and probably of disagreement raised by

Appellant��s' Counsel to this piece of evidence was that it

was evidence led on facts not pleaded. Counsel argued that

a plaintiff in an

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action must call evidence in support of his pleadings and

cited a couple of decided cases in support of this point. But

the question to address here is whether the piece of

evidence given on this issue was indeed not pleaded as

claimed by learned Appellant��s' Counsel? It would be

recalled that at the beginning of the Court�s exercise on

this issue, the Court referred to the fact that the parties

joined issues on the question of the form of marriage

contacted between the Respondent and her deceased

spouse, where the Respondent said at paragraph 10 of her

statement of claim that hers was a monogamous marriage

with the deceased and then at paragraph 1 of the statement

of defense where the Appellants said that what the

Respondent had going for her was a customary law

marriage irrespective of the fact that the couple had first

taken themselves to Church for a marriage blessing.

If these do not constitute pleadings on the facts, I wonder

what else does. Appellant��s Counsel seem to have

forgotten that under the rules of pleadings parties do not

plead evidence but just the facts. The Supreme Court in the

case of OJUKWU vs. YAR ADUA (2009) 12 NWLR (PT.

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1154) 50 per TOBI, JSC (as he then was) had this to say on

the issue;

"��Facts are the fountain head of pleadings as they

are the basis of pleadings. That gives rise to the

definition of pleadings as statements of fact. A party

cannot lead evidence on a fact not pleaded. See

OKPALA vs. IHEME (1989) 2 NWLR (PT. 102) 208;

SPDC LTD vs. NWAWKA (2003) 6 NWLR (PT. 815) 18.

The primary function of pleadings is to define and

delimit with clarity and precision the real matter in

controversy between the parties upon which they

prepare and present their respective cases and upon

which the Court will be called to adjudicate between

them. See ATOLAGBE vs. SHORUN (1985) 4 S.C. (PT.

1) 250."��

What did transpire in the instant case is that the

Respondent stated in her paragraph 10 that her marriage

with the deceased husband was a monogamous marriage,

short and simple and when the Appellants filed their

statement of defense, they joined issues with the

Respondent by saying that her form of marriage was

customary marriage. That was why when she gave her

evidence on the issue she took her time and the opportunity

of her evidence as required in saying why her marriage was

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monogamous and not customary marriage. I cannot see

myself faulting the findings and conclusions made by the

learned trial judge on the issue. To this end, the issue

number one is resolved in favour of the Respondent.

In respect of the issues raised in issue two, learned

Appellant��s Counsel contended that the lower Court had

no jurisdiction to adjudicate over items of property lying

and situate outside its territorial jurisdiction and make

pronouncements of entitlement of ownership, control and

management. Learned Respondent��s Counsel on its part

had argued that the present action between the parties is

not about determining the issue of ownership of the

properties involved in the estate of the deceased Victor

Obioha but about the management of these properties. It is

on account of this argument that it becomes necessary to

observe that the first relief claimed by the Respondent

herein, at paragraph 14 (a) of the statement of claim is for

a declaratory order seeking the placement of the estate of

the deceased Victor Obioha in Respondent��s hands. For

the avoidance of doubt, the said paragraph 14(a) is

reproduced as follows;

"A Declaration

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that the Plaintiff by virtue of her marriage to thedeceased and sole partner in the acquisition of allproperty that constitute the estate of the husband isentitled to the control, management an applicationfor letter of administration��."

In any case, the attitude of this Court in respect of issuesof this nature is that wherever the Respondent appliedto for the grant of a letter of Administration is usually ofno consequence. This Court, per AUGIE, JCA had this tosay in the case BALOGUN V. AGBARA ESTATESLIMITED (2007) LPELR-8794 (CA);"��It is well settled that the High Court of a Statehas jurisdiction to entertain an action arising fromthe administration of the estate of a deceasedperson who died intestate notwithstanding that theLetters of Administration is in respect of propertieswithin the State while the Estate includesproperties outside the State- see SALUBI vs.NWARIAKU (2003) 7 NWLR (PT. 819)426; AMOBIvs. NZEGWU (2005) 12 NWLR (PT. 938) 120 &OKONYIA vs. IKENGAH & ORS (Supra)."��Arising from the forgoing, the issue two is also resolvedin favour of the Respondents.

On account of the third issue raised for the

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determination of the Court, Appellant had contended that

the lower Court failed to conduct a pre-trial Conference as

required under the Rules of Court, precisely the Order 25

Rules 1(1), (2) & (3) of the Imo State High Court

(Civil Procedure) Rules 2008. According to learned

Counsel the convening of a pretrial Conference is a

condition precedent to the hearing of any suit filed in Court

and that the failure to so conduct one robs the lower trial

Court of the jurisdiction to hear the case.

Counsel cited the locus classicus of MADUKOLU vs.

NKEMDILLIM (1962) 2 SCNLR 341 and a host of other

cases in support of his argument. On the part of the

Respondent, learned Counsel told Court that the lower trial

Court complied with the provisions of Order 25 Rules

1(1), (2) & (3) of the Imo State High Court (Civil

Procedure) Rules 2008 as the Court duly convened a

pretrial conference and referred Court copiously to

portions of the Court'��s record on the issue and which I

have no cause to doubt. However, if it is to be assumed that

there was no compliance and that a pre-trial conference

was indeed not convened, what becomes of the issue?

The settled position of

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the law is that non-compliance with rules of Court will not

necessarily result in the setting aside of a judgment of

Court especially where it is adequately demonstrated that

copious steps were taken by the party complaining about

the breach of the rules which he has since waived.

I have carefully examined the processes in this proceedings

and did not see anywhere the Appellant as Defendants

raised objections in protest against non-compliance with

the said Order 25 Rules 1 (1),(2),& (3) of the Imo State

High Court Rules. In raising his objections belatedly on

the issue, learned Appellant�s Counsel did not state

whether by the non-compliance complained about any of

the parties is prejudiced in any way. What should probably

be borne in mind is the fact that the pre-trial conference is

a recent addition to the regime of laws governing the new

set of civil procedure rules of the High Court system in

Nigeria, and that it is only meant to speed up the hitherto

comatose civil trials which were conducted under rules

which had outlived their usefulness due to failures to keep

pace with the fast tempo of modern day commercial and

other civil transactions.

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Besides all of these, the breach of a rule of practice can

only render a proceeding irregularly conducted and not a

nullity. See the case of GAMBARI vs. BUHARI (2009)

ALL FWLR (PT. 479) 458 AT 501.

In the final analysis the issue three is also resolved against

the Appellants and this Appeal is accordingly dismissed

with cost assessed at N100,000.00 in favour of the

Respondent. The judgment of the learned trial Judge, L. C.

Azuama J, of the High Court Justice of Imo State sitting, at

Orlu and delivered on the 21-6-2010 is hereby affirmed.

IGNATIUS IGWE AGUBE, J.C.A.: I had the privilege ofreading in advance the judgment delivered by my brother,Frederick O. Oho, JCA.

The issues that came up for determination in this appealwere adequately considered and resolved in the leadjudgment. I have nothing else useful to add. In that respect,I also dismiss the appeal as lacking in merit.

I abide by the consequential orders made therein.

ITA GEORGE MBABA, J.C.A.: I had the privilege ofreading the lead judgment by my learned brother, F.O.Oho JCA, resolving the issues against the Appellants.

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I agree completely with his reasoning and conclusions,

which in my view, are quite illuminating and in consonance

with the law, in the circumstances. I too dismiss the appeal

and abide by the consequential orders in the lead

judgment.

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