Mrs Scholastica Anionwu & Ors. V. Nnanyelugo Onuora Anionwu & Anor (2009)

LawGlobal-Hub Lead Judgment Report

AMIRU SANUSI, J.C.A.

This is an appeal against the decision of High Court of Justice, Anambra State (“the lower court” for short) delivered on 15th January, 2007 (Coram Amaechina J.). By an amended statement of claim which supersedes the Writ of Summons, the present appellants/cross-respondents as plaintiffs at the lower court, instituted an action against the present respondents/cross-appellants as defendants thereat, claiming against the defendants jointly and severally, the under-mentioned declaratory and injunctive reliefs as reproduced below:-

“a) A declaration that both by Onitsha Custom and English Law, the 1st defendant and late Ononenyi Sunday Anionwu can not marry Mrs. Nneka Udensi (Nee Okolonji) for late Ambassador Lawrence Odiatu Victor Anionwu who died on the 12th day of June 1980 and that the alleged marriage is null and void and of no effect whatsoever..

b) A declaration that it is repugnant to public policy, good conscience and natural justice to hold that a man who died in 1980 married a woman many years after his death.

c) An order of court that Mrs. Nneka Udensi (Nee Okolonji) by virtue of the acts performed by the 1st Defendant and late Onunenyi Sunday Anionwu is married to either of them, and not to late Ambassador Lawrence Odiatu Victor Anionwu.

d) Perpetual Injunction restraining the 2nd Defendant, her agents, privies and .assigns from parading herself, or presenting herself as the wife of late Ambassador Lawrence Odiatu Victor Anionwu or from entering or attempting to enter the L.O.V. Anionwu family house situate at No. 86, Awka Road, Onitsha or any other property exclusive to the plaintiffs.

e) Perpetual Injunction restraining the 1st Defendant, his agents, privies, assigns, workmen or any person or persons whomsoever from according the 2nd Defendant any rights or privileges as the wife of Late Ambassador Odiatu Victor Anionwu.”

At the lower court, the 1st appellant was the first plaintiff having replaced her husband the 1st plaintiff, who died during the trial. Originally, there were three defendants that were sued, who included the present two respondents when the suit commenced at the lower court. The other defendant who used to be the 2nd defendant, one Ononunyi Sunday Anionwu died and his name was struck out by the lower court on 5/5/2005. The present 2nd respondent who used to be the 3rd defendant then became the 2nd defendant at the lower court after the death of Sunday Anionwu who was before his death, the 2nd defendant.

Briefly put, the facts of this case as could be gathered from the pleadings by parties and the reliefs sought are that the first plaintiff/appellant claimed that the 2nd defendant was married for her former husband and that after the said husband died, the 2nd defendant/respondent had since then been parading herself as a wife to the Late L.O.V. Anionwu Esq. On the other hand, the two respondents as defendants claimed that the 2nd defendant is the only wife to the late L.O.V. Anionwu who had married her in 1974 during his life time and denied that there was any marriage contracted by anybody under any customary law after 1974 to date. Two witnesses were called by each party to the case and several documentary exhibits were tendered in evidence. In the end, the learned trial judge found that the plaintiffs failed to prove their claims through credible evidence and dismissed their entire claims. With regard to the case for the defence, the trial court also held that the defendants failed to lead credible evidence to prove the subsistance of any valid customary marriage between the 2nd defendant and late Ambassador L.O.V. Anionwu. Moreso, the court held that the defendants did not make any counter claim in the suit.

Dissatisfied with the judgment of the lower court dated 15th January 2007, the plaintiff appealed to this court vide their Notice of Appeal dated 28th February 2007. Similarly, the two defendants also cross-appealed against the said lower court’s judgment vide their Notice of Cross-Appeal dated the 28th of March 2007.

Both parties have in compliance with rules of this court, filed their Briefs of Argument in both the appeal and cross-appeal. I shall first of all consider the appeal before dealing with the cross-appeal later.

The appellants herein filed joint brief of argument on 18/2/2008 dated same day. They also filed Appellants’ Reply Brief on 4/4/2008 which I will refer to later. The two respondents’ Joint Brief of argument dated 23/3/2008 was filed on 25/3/2008. In the appellants’ brief, two issues for determination were formulated. The issues are:-

(i) Whether the plaintiffs on a complete assessment and evaluation of the evidence presented by them to the court, have proved their case satisfactorily and on the balance of probabilities?

(ii) Whether the learned trial judge was right in dismissing the suit after having found as a fact that there was customary law marriage existing between the 2nd Defendant and late L.O.V. Anionwu Esq.?

The respondents in their joint brief, adopted the two issues for determination proposed by the appellants as reproduced above. I will consider the two issues together in treating this appeal. It is the submission of the learned counsel for the appellants that from the state of pleadings, the defendants have admitted or accepted the depositions of the plaintiff in paragraphs 17, 18, 19, 20 and 22 to the effect that the 1st defendant/respondent and the late Sunday Anionwu purportedly married the 2nd defendant for the late L.O.V. Anionwu who died more than 20 years earlier and that consequent upon the said purported marriage, the 2nd defendant had taken some steps or acts to concretize the said marriage. He said by the provision of Order 9 Rule I of High Court (Civil Procedure) Rules of Anambra State of 1988, facts admitted in pleadings are deemed to have been proved. He also submitted that the defendants/respondents averred in paragraphs 29 and 30 of the Statement of Defence that the plaintiffs/appellants used thugs to resist their attempt to enter No. 86 Awka Road, Onitsha to perform the Otu Odu Society ceremonies, but they kept silent on other facts pleaded by the plaintiffs which led to the said attempt to enter the house and by their silence on the’ other vital facts, the defendants are deemed to have accepted them as true. He said contrary to the lower court’s finding that the evidence of PW1 was based on hearsay, the learned counsel argued that such evidence was not hearsay as hearsay evidence exists, only where a witness says “I was told by XYZ … or XYZ told me that or I heard that XYZ told ABC” etc. See Armel Transport Ltd. VS. Madam Martins (1970) 1 All NLR 27; A. Adeko VS. Vaatra (Pt.887) 2 NWLR (Pt. 48) 134; Management Enterprises Ltd vs. Otusanya (1987) 2 NWLR (Pt. 55) 179; Jolayemi vs. Alaye (2004) 12 NWLR (Pt. 887) 322; Ojo vs. Gharoro (2006) 10 NWLR (Pt.987) 173 at 199 para C-D. He further submitted that the ipse dixit of PW1 is credible and sufficient enough for the court to find that the plaintiffs proved their case. See Debs vs. Cheico Nig. Ltd. (1986) 6 S. C. 179 at 192-193. The learned counsel argued that the defendants did not cross-examine the plaintiffs’ witnesses and by not so cross-examining the plaintiffs’ witnesses on particular matters, is tacit acceptance of the truth of the evidence of the witnesses. See Gaji vs. Paye (2003) 2 NWLR (Pt.823) 605; Ofordile vs. State (2000)12 NWLR (Pt. 680) 325; Njikwuemeari vs. Ochie (2004) 15 NWLR (Pt. 895) 196 at 226/227; Akinwunmi vs. Idowu (1980) 3 – 4 SC 108. He added that where an adverse party failed to challenge evidence in the proceedings, the court has a duty to act on the unchallenged evidence before it. See Leadway Assurance Co Ltd. vs. Zeco Nig. Ltd (2004) 11 NWLR (Pt. 884) 316 at 319. He then urged us to hold that the learned trial judge completely misdirected himself in failing to act on the unchallenged evidence presented by the PW1. In a further submission, the learned counsel for the appellants also argued that several exhibits were tendered by them as plaintiffs to support the testimony of PW 1 that 2nd defendant/respondent was married by 1st defendant to the late Ambassador many years after his death of (i.e. L.O.V Aniownu Esq.) Also tendered in evidence was Exhibit A, the marriage certificate confirming the marriage between 1stplaintiff appellant and late Ambassador L.O.V Anionwu under the Marriage Act which thereby excluded all other marriages in as much as such marriage under the Ordinance was undissolved. Any other subsequent purported marriage contract therefore becomes invalid. See Agbogu vs. Agbogu (1995) 1 NWLR (Pt. 372) 411 at 420 Para B – C Olowu vs. Oluwu (1995) 3 NWLR (Pt.13) 372 at 390/391.

It was further submitted on behalf of the appellants, that late L.O.V. Anionwu never contracted any other marriage during his life time and that PW1 (2nd appellant) was his only wife. The learned appellants’ counsel argued further, that the PW1 was not cross-examined by the defence on such vital pieces of evidence, hence the defence is deemed to have accepted those pieces of evidence. He also argued that even if it is assumed that late L.O.V. Anionwu had contracted any marriage during his life time, such later marriage is a nullity by virtue of Section 3(1) of Matrimonial Causes Act Cap 220, Laws of the Federation of 1990.

Other important document tendered in evidence at the trial by PW1 include letters of condolences from eminent Nigerians to P.W.1, newspapers publications on 1st and 10th year anniversary of his death, Letters of Administration issue to her as a co-administrator of the estate of her late husband which said exhibits were not challenged which, go a long way in proof of their case at the lower court and since they were not so challenged, the learned counsel maintained that they can be deemed to have been accepted by the defence. The learned counsel also submitted that the learned trial judge did not evaluate the evidence presented by the plaintiffs (PW1) properly but merely concluded that the evidence of PW1 on the issue of recent marriage was hearsay without considering PW1’s testimony and the documents she produced. He then urged that this court being an appeal court, has power to evaluate the evidence on the lower court’s failure to properly do so. See Abiai vs. Ekwealor (1993) 6 NWLR (Pt. 302) 643 at 673, Awudu vs. Daniel (2005) 2 NWLR (Pt. 909) 199 at 228.

On the learned trial judge’s dismissal of the case of the plaintiffs/appellants after finding that there was no customary law marriage existing between the 2nd defendant and Late L.O.V. Anionwu, the learned appellants’ counsel submitted that the trial court was wrong in law to have dismissed the claim since the trial judge, rightly held that the alleged customary law marriage allegedly celebrated in 1974 was not proved. He urged this court to hold that the plaintiffs/appellants have proved their case on balance of probabilities. He finally urged us to allow the appeal accordingly.

Replying, the learned counsel for the respondents in his brief of argument dated and filed on 25/3/2008, submitted that the plaintiffs/appellants did not prove their case at the lower court to warrant the grant of their claims as required of them so to do by the provisions of Section 135(1) and (2) of the Evidence Act. He said the plaintiffs/appellants also failed to prove that there was posthumous marriage between L.O.V. Anionwu and 2nd respondent and the way the 2nd respondent paraded herself as wife of LOV Anionwu and, that there was no customary marriage between 2nd respondent and late LOV Anionwu among others. The learned counsel submitted that the trial judge was correct in describing the portion of the evidence of PW2 that the 151 defendant (i.e. original 2nd defendant) now late, had purportedly married the original 3rd defendant to her husband late L.O.V. Anionwu as hearsay evidence and that such evidence lacked any positive value and ultimately rejected or disbelieved it.

On whether the 2nd respondent had actually paraded herself as wife to late L.O.V. Anionwu, the learned respondents’ counsel stated that all the documentary exhibits tendered and relied on by the PW2 to support her case do not establish her claims that 2nd defendant/respondent paraded herself as late L.O.V. Anionwu’s wife as the latter never showed any positive action on her part to prove that she paraded herself as late L.O.V. Anionwu’s wife. He added that the fact that Exhibits F, J and K bore the inscription “Mrs. Anionwu” is not enough reason to suggest that, since the 2nd respondent could at any time chose to bear any name she decides to and that name could merely be identical and also that PW1 did not lead any evidence to show that the 2nd respondent by using that name did so to prejudice the PW1/appellant.

In a further submission, the learned counsel for the respondents stated that the mere use of the name “Mrs. Anionwu”, the 2nd respondent could not justify the PW1/appellant to claim that any damage was caused to her since the 2nd plaintiff/appellant was known to be the wife of L.O.V Anionwu. The appellant had therefore not shown any injury caused her at all or that she had suffered by the allegation that the 2nd respondent bore the name “Mrs. Anionwu”.

On the learned appellants’ counsel submission that they led credible evidence to support their pleadings and that the evidence they led was not challenged or controverted during cross examination and as such should be deemed to have been accepted by the defence, the learned counsel argued that it was only after the plaintiffs/appellants discharged the burden of proof placed on them by law, there was absolutely nothing they could do since the plaintiffs as asserters failed to prove their case and since the court even held rightly too, that such evidence they adduced was “patently unsatisfactory”. His final submission on this issue is to the effect that the reliefs sought by the appellants were not grantable at all In view of the scanty evidence adduced by the plaintiffs/appellants and therefore the trial court was right in dismissing the plaintiffs’/appellants’ claims.

With regard to issue two supra, the learned counsel for the respondent remarked that he had argued it in his cross appeal which I will treat later.

As I stated earlier, the appellant filed Reply Brief to meet the arguments/submission made in the respondents’ brief of argument which appeared to have touched some fresh or new issues. Most of the issues raised in the Reply Brief are however mere expatiation on the submissions made in his appellants’ brief of arguments. I will therefore consider them later in this judgment along side with he appellants’ brief. Perhaps it will not be out of place, if at this stage some relevant paragraphs in the parties’ pleadings are set out below for ease of reference and in order to or decide whether the evidence adduced by the parties at the lower court were considered and evaluated in its judgment. I will start with the relevant ones deposed to by the plaintiffs in their joint amended statement of claim dated 3/6/2005 which also appear on pages 33 to 35 of the Record of Proceedings. The Paragraphs read as below:-

Paragraph

“7. The 2nd plaintiff got married to the late Ambassador Lawrence Odiatu Victor Anionwu at Holy Trinity Cathedral Onitsha on 26th day of December 1953, under the Marriage Ordinance. The plaintiffs shall at the trial found upon the Marriage Certificate.

8. The late Ambassador Lawrence Odiatu Victor Anionwu, during his life time did not marry any other wife, other than the 2nd plaintiff.
9. The 1st Defendant and late Ononenyi Sunday Anionwu, a few months ago purported to marry the 2nd defendant for the late L.O.V. Anionwu who died more than twenty years earlier.
10. In consequence of their purported marriage of the 2nd Defendant for the dead Ambassador L.O.V. Anionwu, the 1st Defendant and Ononenye (Late) introduced the 2nd Defendant to the married women’s guild of Ogboli – Eke village as their co-wife to Ambassador L.O.V. Anionwu.
11. The 2nd defendant now joins the other wives of Anionwu family (Ikporo Ogbe) in most traditional functions and now parades herself as Mrs. Nneka Anionwu, wife to Ambassador L.O.V. Aniownu.
12. In furtherance of her claim, the 2nd Defendant in the year 2001 attempted to break into the L.O.V. Anionwu family house at No. 86 Awka Road, Onitsha in order to celebrate her initiation into the Otu Odu Society of Onitsha, but was successfully resisted by the plaintiffs. The 2nd Defendant at the time printed a lot of souvenirs in which she described herself as Mrs. Nneka Anionwu. The plaintiffs shall at the trial found upon those souvenirs.
13. The 1st Defendant conspired and connived with late Ononeye Sunday Anionwu to force the 2nd Defendant into the L.O.V. Anionwu family house at No. 86, Awka Road, Onitsha, presently under the occupation of the 1st plaintiff and her family under the guise that she is Mrs. Anionwu, wife to the late Ambassador L.O.V. Anionwu.” (emphasis supplied)

I have rummaged through the entire record of proceeding and am unable to see any amended statement of defence filed by the defendants/respondents to meet or join issues properly with or in reply to the depositions made supra by the plaintiffs/appellants in their amended statement of claim dated 3rd June 2005. The only existing pleading was the original statement of Defence dated 1ih November 2003 as shown on pages 13 to 16 of the record of proceedings. The depositions relevant or close to reply to the depositions in the amended statement claim quoted above will still be set out below:

Paragraphs

“4. Late Amabssador L.O.V. Anionwu in his life time was married at different times to the 2nd Plaintiff and the 3rd Defendant even though it is conceded that his said marriage to the 2nd Plaintiff was blessed under Roman Catholic tradition at the Holy Trinity Cathedral Onitsha but same was never in accordance with Marriage Act, Late Ambassador L.O.V. Anionwu throughout his life time was a Christian of the Anglican faith who even when he died was buried as a communicant of Anglican Christian faith.

5. Despite the aforesaid blessing of the marriage between the 2nd Plaintiff and Late Ambassador L.O.V. Anionwu, late Ambassador L.O.V. Aniownu married the 2nd Plaintiff as he did to the 3rd Defendant under the Onitsha native law and custom. The 2nd plaintiff and 3rd Defendant being natives of Onitsha, a customary marriage under the Onitsha native law and custom is valid once the bride price of a woman is paid by the husband. In 1974 L.O.V. Anionwu (late) paid the bride price of 3rd Defendant.
6. Throughout the period preceding his death, Late Ambassador L.O.V. Anionwu was hospitalized at the Iyi-Enu Specialist Hospital Ogidi and it was only 3rd Defendant along with other members of Anionwu family that looked after him.
7. As soon as the Nigerian Civil War was over the 2nd Plaintiff when she attempted to recommence cohabitation with Ambassador L.O.V Anionwu was rebuffed by him who sent her packing. The 2nd Plaintiff was sent packing as aforesaid after the long juju masquerade (“Muo Ogonogo”) was invoked and certain rituals were performed as a prelude to same.
8. According to the Onitsha native law and custom, once the long juju masquerade is invoked it performs the rituals of sending a married woman packing from her husband’s house, the marriage between the man and the woman automatically stands dissolved.
9. When subsequently Ambassador L.O.V. Anionwu died, the 2nd Plaintiff being aware of the customary incidence of the dissolution of her marriage to Ambassador L.O.V. Aniownu did not mourn him as his wife.
10. Throughout the burial ceremonies of Ambassador L.O.V. Anionwu the 2nd Plaintiff was at her father’s compound at Enwuonwu Street, Onitsha and she was then contented with her then more fanciful and amorous relationships with Akunne Ofili Udo now Chief Ofili Udo, a fact known to every person of Onitsha.
11. Ever since the termination of the said marriage between the 2nd Plaintiff and Late Ambassador L.O.V. Aniownu the 2nd Plaintiff has never participated at the social functions relating to members of the larger Anionwu family as she keeps accusing them of supporting Late Ambassador L.O.V. Anionwu against her.
12. One of the facts agreed upon on the matters in court being settled as above was that the names of the Plaintiffs should be used to obtain the Letters of Administration to the estate of L.O.V. Anionwu deceased.
13. As a result of the greed of the 2nd Plaintiff to acquire even from where she did not sow, the application for the said letters of Administration to estate of L.O.V. Anionwu was stealthily and mischievously made to tell a lie as if the 2nd Plaintiff was still a wife to late L.O.V. Anionwu despite the fact above set out.
14. Late L.O.V. Anionwu married the 3rd Defendant sometime in 1974 and in 1975 the 3rd Defendant gave birth to Onyeka Julius and Chizoba Joan to late L.O.V. Anionwu and in 1977 the 3rd Defendant gave birth to Ifeyinwa Rita to Late L.O.V. Anionwu. Onyeka Julius Anionwu is now a Legal Practitioner while his twin sister died sometime ago. Ifeyinwa Rita has graduated in her Law Degree from the University.
15. When eventually the 3rd Defendant was initiated into the Out Odu Society she was issued with a Certificate of Membership of the said Otu Odu Society in the name of Olikeze Nneka Anionwu. At the trial Defendants shall found on the said Certificate issued to the 3rd Defendant.”

The Plaintiffs/appellants still filed Reply to the Statement of Defence at pages 17 and 18. The paragraphs relevant to the depositions made in the statement of Defence in reply are also quoted below:-

Paragraphs:

“4. It is instructive to note that the order granting letters of Administration to the Plaintiffs in 1981, was made by the then Chief Justice of Anambra State, Hon. Justice E.O. Araka, Rtd. Justice E.O Araka is a first cousin to the 3rd Defendant and they relate very well.

5. Hon. Justice E.O Araka, knew late L.O.V. Anionwu, Esq., very well, and is familiar with his nuclear family. That apart, publications were made in the gazette before the grant of letters of Administration.
6. The 3rd Defendant cannot produce any document sent to her condoling her as a wife to late L.O.V. Anionwu, Esq. on his death in 1980.
7. The late Chike Anionwu was alive in 1974 and ought to have been around during the alleged marriage of the 3rd Defendant yet when L.O.V. Anionwu and Chike Anionwu became the Heal of the family, he did not acknowledge the 3rd Defendant as a wife to late L.O.V. Anionwu. It was late Chike Anionwu that brought Onyeka Julius, Chizoba Joan and Ifeyinwa Rita, into L.O.V. Anionwu’s family and yet did not accept the 3rd Defendant as L.O.V. Anionwu’s wife. The Plaintiffs shall at the trial found upon records of the proceedings of the Suit instituted by late Chike Anionwu after the death of L.O.V, Anionwu, against he 2nd Plaintiff as wife of Late LO.V. Anionwu,”

Seemingly in an effort to prove their claims, the 2nd plaintiff now 2nd appellant testified as PW1 at the lower court, Part of her testimony as shown on the record reads:-

“I know the late Ambassador Lawrence Odiatu Victor Anionwu, he was my husband. The late Emmanuel Amechi Anionwu (deceased 1st Plaintiff) was the first son of late Ambassador L.O.V. Anionwu and head of his family, My late husband was monogamous in his married life, I was his one (sic) wife I got married to my late husband L.O.V. Anionwu) on 26th December 1953. The marriage between me and my late husband took place at the Holy Trinity Cathedral, Onitsha, It was a marriage under the Ordinance and a marriage certificate was duly issued. I have a certified copy of the marriage certificate. The two documents shown to me are the original marriage certificate and the certified true copy thereof. … My late husband in his life time did not contract any other marriage with anyone. I am his only wife, My late husband died on the 12th June 1980. At his funeral, I was the only person that mourned him officially as his only wife and nobody else other than me mourned him as his wife. On the 14th day of June 1981 we the members of Anionwu family celebrated the first anniversary of my late husband’s death by going to Church. I was the only person that participated in the one year anniversary as his only wife. On 16th June 1990, again we members of Aniownu family celebrated the 10th year anniversary of my late husband’s death by going to church to mark. Again, on that occasion I was the only person that participated in the 10th anniversary as his only wife. In the 2nd half of December 1995, again we the members of Anionwu family performed the 2nd burial of my late husband according to Onitsha custom. Again I was the only wife that mourned him at the 2nd burial ceremony according to Onitsha native law and custom. Upon my husband’s death, I received letters of condolence from Archbishop of Onitsha, His Excellency Alhaji Shehu Shagari, the then President of the Federal Republic of Nigeria; Hon. Chief P.O. Polokor, Hon. Minister of State for External Affairs; Hon. Chief Justice Fatayi- Williams, the then Chief Justice of Nigeria, (now late). I am still in possession of these correspondences from eminent Nigerians. If I seen them I can recognize them. The documents shown to me are the letters of eminent Nigerians condoling me on the death of my husband. I have just mentioned…

My late husband, L.O.V. Anionwu died intestate. Application for letters of Administration of his estate was made by myself as his wife and my late step son and son of my husband (the late Emmanuel Anionwu) who is the deceased 1st Plaintiff). No other person applied to be recognized as wife of my late husband to the Probate Registrar apart from my humble self. Letters of Administration was granted to myself and the late Emmanuel (my late step son) on the 29th day of June 1983. I have a copy of the Letter of Administration I have just mentioned. The document shown to me is a copy of the Letter of Administration in respect of the estate of my late husband. Sometimes ago, the 1st defendant and the original 2nd defendant (now late) whose name was struck out purported to marry the 3rd defendant (Mrs. Nneka Udensi (Nee Okolonji) now 2nd defendant for my husband who died more than 20 years ago. The original 1st and 2nd defendants introduced the 3rd defendant (now the 2nd defendant) to the Women’s Guild (Ikporo Ogbe) as wife of late Ambassador L.O.V. Anionwu (my husband) and she now parades herself as same. Sometimes in 2001 in furtherance of her claim, the 3rd defendant (now 2nd defendant) attempted to force herself into my husband’s house to start the initiation into the society as Mrs. L.O.V. Anionwu and I successfully stopped her. And she was initiated into the society as Mrs. Nneka Olikeze Okolonji. “Olikeze” is her title name while Okolonji is her father’s name. The said 3rd defendant (now 2nd defendant) went ahead and printed souvenirs describing herself as Mrs. Anionwu. I have in my possession one of the souvenirs. A relation who attended the Otu Odu initiation ceremony of the said 3rd defendant (now 2nd defendant) and saw the name on the souvenir and brought the souvenir to me. The plastic souvenir shown to me is the souvenir produced by the 3rd defendant (now 2nd defendant) at her initiation ceremony.”

The PW1 concluded her testimony thus:-

“The 1st defendant has not stopped parading the 3rd defendant (now 2nd defendant) as the wife of L.O.V. Anionwu, and will not stop unless and except this court by order restrain them from doing so. They have not stopped trying to enter my husband’s house (No. 86 Awka Road, Onitsha but we were resisting them. I am asking this court to grant my reliefs as stated in paragraph 24 of my amended statement of claim.”

(emphasis mine).

It is instructive to note that except when the Marriage Certificate Exhibit A and copy of Consent judgment, Exhibit E were tendered in evidence through PW1/2nd appellant, all the other documentary exhibits tendered by the PW1 were not opposed or objected to by the learned counsel for the defendants/respondents. These include (i) Letter of Condolence dated 26/6/80 sent by the Archbishop of Onitsha (Exh. B), other condolence letters Exhibits B1 to B3; Daily State Newspaper publication Exhibit C & C1; Letter of Administration – Exh. D. 1 must say that the testimony of the PW1 was not punctured by the defence at all during cross examination. In fact, she was not even seriously cross-examined with regard to some salient or vital points she testified on which had close bearing or relevance to her claim before the lower court. Her testimony in my view and as can be seen from the excerpts above, was: straight to the point in issues or in contention and had gone a long way in supporting the depositions she made in her amended statement of claim.

With regard to the case for defence, it is noteworthy, that two witnesses were also called by the defendants/respondents. The first defence witness testified inter alia, as follows:-

“Before the said L.O.V. Anionuw died, he did the traditional wine carrying (traditional marriage) to accompany him to the house of Chief Okolonji (the Ojioba of Onitsha) for the traditional marriage between him (L.O.V. Anionwu) and Chief Okolonji) daughter (Nneka Okolonji). In actual, the traditional marriage between L.O.V. Anionwu and Nneka Okolonji went on in accordance with Onitsha native law and custom. After the traditional marriage at Chief Okolonji’s house, the ceremony of bringing the bride to her husband’s house (Idu Uno) was also performed the same day….

Under Onitsha custom, a man can marry more than one wife, even up to six wives provided he has the money to maintain them.”

The second defence witness, one Okey Ikeonu who claimed that the 2nd defendant is his sister also testified, inter alia, as follows:-

“In 1974 (to be precise Jan 1974) the late L.O.V. Anionwu and his relations came to late Chief Okolonji’s compound to perform the traditional marriage between the said L.O. V. Anionwu and the said Nneka Okolonji. The traditional marriage known as the Ibu Mmanya or traditional wine carrying ceremony was performed for Nneka Okolonji on the day L.O.V. Anionwu and his relations came to Chief Okolonji’s compound…. I know the other senior wife of the late Ambassador L.O.V. Anionwu. I saw her in court today.”

When asked during cross examination to name the persons who attended the customary marriage he answered thus:-

“I can not remember, all I know the DW1 was among them because I see him in court at the moment.”

The learned trial judge after considering the evidence adduced in the case made the following finding in his judgment at pages 137 to 138 of the records of proceedings:-

“Apart from the statement of the PW.1 (i.e. the 2nd plaintiff herself) that sometime ago after the demise of her late husband (the late Ambassador L.O.V. Anionwu) the 1st defendant and the late Ononenyi Sunday Anionwu purported to marry the 2nd defendant for the late Ambassador L.O.V. Anionwu. From her evidence it is obvious that she (PW1) gave a hearsay evidence on the point as she never witnessed the disputed or purported marriage nor gave particulars as to when and where and how the marriage took place, or the persons that attended the marriage ceremony or the amount of bride price paid for the 2nd Defendant. PW2 (Mrs. Nnabuenyi Mary Onwualu) did not give evidence on the said purported or disputed marriage. Because the evidence of PW1 lacks probative value, I can only come to the conclusion that the plaintiffs’ evidence on the issue of the purported or disputed marriage of the 2nd defendant for the late L.O.V. Anionwu many years after his death is so patently unsatisfactory that it is not necessary to consider the case of the defence on the point at all. If the plaintiffs’ case had some weight, it would have been necessary for this court to consider the case of the defence after considering what led by the plaintiffs, and thereafter put the evidence led by both sides in the imaginary scale, weigh it and decide upon the preponderance of credible evidence which one has more weight. See Woluchem v. Gudi (2006) 2 LC 132 at 149, per Nnamani JSC (of blessed memory).

In case my reasoning that it is not necessary to consider the defence at all is faulty. I have decided to consider the contrary evidence led by the defence to show that the 2nd defendant had a lawful customary marriage in 1974 with the late Ambassador L.O.V. Anionwu who died in 1980. The defendants in trying to prove this point of fact called two witnesses i.e. DW1 and DW2 (Messrs Nwachinemelu Okey Emodi and Okey Ikeomu). I watched the demeanor of those two defence witnesses in the witness box and found them to be witnesses lacking in credibility. Apart from the fact that they hesitated a lot in answering questions under cross-examination, the totality of their evidence showed that they did not witness the alleged customary marriage between the 2nd defendant and the late Ambassador L.O.V. Anionwu. For instance, both DW1 and DW2 do not come from the same family or place of extraction as the 2nd defendant’s maiden family, i.e. the Okolonji family of Ogbeoza Village, Onitsha. Both DW1 and DW2 could not give any evidence of the actual amount paid by the late L.O.V. Anionwu as the bride price for the 2nd Defendant. The 2nd defendant by failing to testify or call any member of her family as witness in this matter did not help matters. In the circumstances of this case which relates to customary law marriage, there is no way I can accept the evidence of customary law marriage in this case as credible when there is no evidence of the amount of bride price paid on the head of the 2nd defendant. It is trite law that the first step of a valid customary law marriage is the payment of dowry or bride price. See Nsirim v. Nisrim (2005) 2 SMC 267 at 301 per Onalaja JCA.”

In the judgment of the lower court, there is nowhere the learned trial judge commented on, considered or evaluated some of the documentary or exhibits tendered by the plaintiffs/appellants through PW2 in proof of her claims which in my humble opinion, were relevant to her claims before the lower court. It will therefore be correct to say that he merely assessed and evaluated the evidence of the defence to some extent without evaluating the evidence of the plaintiff. I do not agree with the learned trial judge when he said at page 136:-

“After due consideration of the evidence led in this matter I can only come to the conclusion that the evidence led on the above issue for determination is so patently unsatisfactory that it lacks credibility.”

With due deference to the learned trial judge, how could he have decided the issue of preponderance of credibility without putting the evidence adduced by the parties on imaginary scale and weighing same? In her effort to prove that throughout the life time of late L.O.V. Anionwu she was married to him under the Ordinance since 1953 till his death in 1980 and that such marriage was never dissolved. The PW2/2nd Appellant tendered their marriage certificate in support of her pleading which was admitted in evidence as Exhibit A. This exhibit is a valid and credible documentary evidence which implies or shows that having had a subsisting marriage under the Ordinance, late L.O.V Anionwu and PW2 can be said to have a monogamous marriage under the Act, hence either of them is precluded by law from marrying under any guise or law during the subsistence of such marriage and there is no evidence adduced in the case to show that such marriage was ever dissolved during the lifetime of L.O.V. Anionwu. None of them could therefore undergo any marriage. Section 35 of the Marriage Act Cap 115 Laws of the Federation 1958 reads:-

“Any person who is married under this Act or whose marriage is declared by this Act to be valid, shall be incapable, during the continuation of such marriage, of contracting a valid marriage under native law or custom, but save as aforesaid, nothing in this Act contained shall affect the validity of any marriage contracted under or in accordance with any native law or custom, or in any manner apply to marriage so contracted.”

By tendering Exhibit A, the PW2 has established that she had a valid subsisting marriage under the Ordinance which excludes any other marriage or purported marriage by her late husband L.O.V. Anionwu. See Olowu vs. Oluwu (Supra); Agbogu vs. Aghogu (supra). PW2 in her testimony maintained also that she was the only wife of late L.O.V. Anionwu and also denied that the latter had contracted any marriage with any other person during his life time. She was not cross examined by the defence on that vital point or piece of evidence. Of important note is, that evidence abounds that the late Ambassador was a renowned lawyer of repute who must have known the implication of marrying another wife during the subsistence of his monogamous marriage with the PW2/appellant.

Evidence also abounds from Exhibits B, B1 B2 and B3 which are letters of condolence sent by eminent Nigerians to PW2 as his wife consoling her on the passing on of her late husband. Again Exhibits C and C1 were 1st and 10th anniversary publications made by her in remembrance of the late husband. Exhibit D is letter of Administration granted to PW1 and PW2 as the administrators of late L.O.V. Anionwu’s estate. Similarly, the Consent judgment, Exhibit E, clearly shows how members of the family were ad idem on how the estate was shared to the plaintiffs and few others and 2nd Defendant was not among the heirs at all. All these documentary evidence were tendered through PW2 and admitted without any resentment from the defence and no serious cross-examination was made by the defence counsel challenging the veracity of the said exhibits which tend to establish material points pleaded by the plaintiffs in their amended statement of claim and aimed at proving their claims. The law is settled that where evidence is given by a party in a proceeding and such evidence was not challenged by the adverse party who had the opportunity to do so, the court has a duty to accept and act on such unchallenged evidence. See Leadway Ass. CO. vs. Zeco (supra). In fact, failure to cross examine witnesses on certain material point amounts to a tacit acceptance. See Gaji vs. Paye (supra); Njiokwaemefu vs. Oehee (2004) 15 NWLR (Pt.895) 196; Agbifo vs. Aiwerobe (1988) 1 NWELR (Pt.70) 325.

The documentary exhibits tendered by PW 1 and admitted in evidence especially Exhibits A to H, to my mind, clearly showed that before the year 2001, the 2nd defendant was known as and referred as Mrs. Nneka Okolonji. As I said supra, the testimony of plaintiffs supporting these documentary evidence was never impeached or challenged by the defence during cross examination. See Gaji vs. Paye (supra). It is therefore bizarre to me, why the learned trial judge refused to act on these vital pieces of evidence which were apt and material to the issues in contention by parties before him.

On the allegation that the 2nd defendant/respondent was parading herself as wife to the late L.O.V. Anionwu, the 2nd plaintiff/appellant adduced evidence at the trial court supporting such claims or allegation as her testimony had also shown instances and actions of the 2nd defendant tending to show that she paraded herself as wife to the late L.O.V. Anionwu. Notable among these pieces of evidence presented by the 2nd PW that tend to show evidence of parading is admission in her pleading in some paragraphs in the joint statement of defence in which they both admitted that the 2nd defendant/respondent was wife of L.O.V. Anionwu and they also admitted attempting to enter the family house of the deceased in order to celebrate her initiation into the Otu Odu Society of Onitsha (see paragraphs 29 to 31 of Statement of defence). Again Exhibit F, a souvenir printed by the 2nd defendant portrayed the impression that the 2nd defendant was married to late L.O.V. Anionwu. Similarly under re-examination PW2 testified that the 2nd defendant/respondent put in her name in Exhibits J and K as Mrs. Nneka Anionwu after she was initiated earlier as Mrs. Nneka Okolonji Olikeze in Exhibit H.

With regard to the case for the defence, the learned trial judge as I posited above, had somehow assessed and evaluated the case for the defence when he said that he watched the demeanour of the two defence witnesses and concluded that their testimonies lacked credibility and also concluded that they did not witness the alleged customary marriage between 2nd defendant and late L.O.V. Anionwu. I think the trial judge cannot be faulted on this finding or observation. The trial court also observed that the 2nd defendant/respondent who had all along been present when her two witnesses testified yet she never cared to testify on her alleged marriage. To my mind, the trial judge rightly found that no evidence was led on the amount paid as bride price which is a pre-requisite in any valid customary marriage See Nsirm vs. Nsirim (2005) 2 SC 267 at 301.

The learned counsel for the respondents referred to the finding of the trial judge on her evidence when she said that sometimes ago the 1st defendant and the original 2nd defendant now late Ononeyi Sunday Anionwu purported to marry the 3rd defendant for her husband who died more than 20 years ago, when the learned trial judge said:

“From her evidence it is obvious that she (PW1) gave a hearsay evidence on the point as she never witnessed the disputed or purported marriage nor gave particulars as to when and where and how the marriage took place or the persons that attended the marriage ceremony or the amount to bride price paid for the 2nd defendant. PW2 did not give evidence on the said purported or disputed marriage (see page 1317) of the record.”

The learned counsel for the defence still on this issue referred to the finding trial judge as below:

“Because the evidence of PW1 lacks probative value, I can come to the conclusion that the plaintiff evidence on the issue of the purported or disputed marriage of the 2nd defendant for the late L.O.V. Anionwu many years after his death it is not necessary to consider the case of the defence on the point at all.”

The learned counsel on this note, submitted that the findings and assessment of the evidence on that point by the trial judge are defensible and that it was not a matter for the judge to pick and choose. With due deference to the learned counsel for the respondents, it is the defence that in their pleadings and the evidence presented by their two witnesses that are claiming that there was a customary marriage between the 2nd defendant and the late Ambassador L.O.V. Anionwu. But all along the plaintiffs were denying the existence of such marriage and wanted the court to stop defendant from parading herself as her late husband’s wife. She (PW2) was making the protest basically because they were monogamously married since 1953. The learned trial judge was simply saying PW1’s evidence on the issue of the purported or disputed marriage to L.O.V. Anionwu posthumously had no probative value. The trial judge regarded PW1’s evidence on that point as hearsay. He did not say that her entire testimony was based on hearsay. So to my mind, the question of picking and choosing as argued by the learned respondent’s counsel did not arise since all along it was not the plaintiffs’ case that the alleged customary marriage was valid. What baffles me is why and how the learned trial judge could dismiss the plaintiffs case perhaps simply on this piece of evidence that he regarded as hearsay without evaluating the entire evidence adduced by the plaintiffs/appellants both oral and documentary. To my mind, the learned trial judge is simply rejecting the plaintiffs’ assertion that there was alleged posthumous marriage between the 2nd defendant and the late Ambassador L.O V. Anionwu. This is because in another breath, as I remarked above, the trial judge concluded while assessing the case for the defence, that customary marriage was not proved by the defence as they pleaded, in view of the absence of credibility of the two defence witnesses called.

Similarly on the issue of parading by 2nd defendant as wife to the late Ambassador, the learned respondent’s counsel submitted that the fact that his client used the name of “Mrs. Anionwu” did not amount to parade since she is free to use any name she wanted to use. The nagging question is, which “Anionwu’s” name was she using? The other instances such as the souvenir (Exhibit F), and the names used in Exhibit J referred to manifest that she was referring to no other person but L.O.V. Anionwu the late husband of PW2. In any case, in their pleadings, they throughout stated that she (2nd defendant) was married to L.O.V. Anionwu.

The learned counsel for the respondents also argued that the plaintiffs/appellants, particularly PW1, did not suffer any injury or damage caused her on the alleged action of the 2nd defendant. This argument in my opinion is porous and unconvincing. In her pleadings, PW1 claimed that the 2nd defendant was masquerading as late L.O.V. Anionuw’s wife while she never was and to the extent of her making efforts to forcibly enter late Ambassador’s family house situate at No. 86 Awka Road Onitsha. I must say at this stage, that from a careful, objective and dispassionate analysis of the evidence adduced by both parties, I am inclined to agree with the submission of the learned counsel for the appellants, that the lower court did not properly and correctly assess and evaluate the evidence of both parties and weigh them on an imaginary scale to decide on which side the scale tilts. It did not use its function as trial court to consider the testimony of PW1 vis a vis her claims and the documentary evidence she tendered which were never challenged by the defence during cross-examination. I am mindful of the fact that evidence presented and relied on by the plaintiffs/appellants was largely the ipse dixit of PW1. But then that did not make it inadmissible or unreliable especially in view of the fact that it was not challenged or impeached during cross-examination. It is trite law and well settled law too, that mere ipse dixit is admissible evidence resting on the assertion of the person who made it. However where there is need for further proof, a mere ipse dixit may not be sufficient. In this instant case the evidence of PW I is complete, straight to the point unassailable and it also had probative value. It is therefore no doubt sufficient for the trial court to believe and act on it or attach weight to it. See Debs vs. Cenco Nig. Ltd. (1986) 3 NWLR (Pt.32) 884. See also Omonua vs. Okpera (1991) 5 NWLR (Pt. 189) 36,. Akinkunmi vs. Sadiq (1997) 8 NWLR (Pt. 516) 277.

Again it needs to be stressed here that the case of the plaintiff was not solely fought on the ipse dixit of the 2nd plaintiff (i.e. PW1) as PW2 was called and had testified on some relevant points to some other parts of the allegations made by the two plaintiffs/appellants.

It has also come out from the mouth of the respondent’s counsel that the plaintiffs/appellants failed to prove their claims, as the burden of proof is on them by virtue of Section 135 of the Evidence Act to prove the existence of facts on which they based their reliefs. To my mind, looking at the nature of their claims before the lower court, it would be correct, in my view, to say that they led reliable and credible evidence to establish their claims which if the lower court had dispassionately assessed and evaluated it alongside with that presented by the defendants, it would have come to the conclusion that they (plaintiffs) had proved their claim on balance of probabilities as they law requires them so to do. Note however, that it was the respondents that brought the issue of the 1974 marriage as their defence. The appellants simply responded by saying that there was no such marriage and even if it had ever existed, it was a nullity by virtue of Exhibit A. On its part, the trial court rightly decided that there was no proof that such marriage ever existed at all.

I am fully aware of the fact that the function of this court, being an appellate court, is mainly restricted to seeing whether or not there was evidence before the trial court upon which its decision of facts was based; whether it wrongly accepted or rejected any evidence tendered at the trial; whether evidence called by either party to the conflict was put on either side of an imaginary scale and weighed against the other; in other words whether the trial court correctly approached the assessment of evidence before it; whether evidence properly admitted was sufficient to support the decision upon the inference drawn therefrom. See Anachune Anyaola & Ors vs. Dr. Felix Adi & Drs (1986) 3 NWLR (Pt. 31) 731 at 742; Mba Nta & Ors vs. Ede Nwude Anigbo & Drs (1972) All WLR (Pt.2) 74 at 80; Mogaji & ros vs. Odofin & Ors. (1972) 4 SC 91: Ogbonda vs. Adlugba ( 1971) All NLR at 71; Agbomifo vs. Aiwereoba (supra).

The lower court in this instant case did not even consider the documents tendered in evidence by the PW1 i.e. 2nd plaintiff/appellant not to talk of testing the authenticity or veracity of such documentary evidence even though none of them was seriously attacked, questioned or challenged to have been forged during cross examination as would justify the court’s resolve to refuse to act or accept or believe them. It is trite law also that once an issue canvassed did not involve the credibility of witness but only on non-evaluation or improper evaluation of evidence adduced at the lower court, an appellate court has to usurp the function of lower court and interfere and evaluate the evidence adduced at the trial court which the latter failed to evaluate or improperly evaluate same. See the cases of Missr Nig. Ltd vs. Ibrahim (1975) 5 SC 55 at 62; Egonu vs. Egonu (1978) 11 -12 SC 111 at 129; Abisi vs. Ekeafor (1993) 6 NWLR (Pt.302) 643) at 673.

Thus, with the above analysis and assessment of the entire evidence presented in the case by parties, which the lower court regrettably failed to properly do, I am of the considered opinion that the evidence adduced by the plaintiffs/appellants preponderates over and above that of the defendants/respondents. The trial court ought to have found that the plaintiffs had proved their claims before it but it failed to do so. For that reason therefore, I find that the plaintiffs have proved their claims on the balance of probabilities. I therefore set aside the finding of the lower court and hold that the plaintiffs had proved their case and I accordingly grant all their claims. The appeal therefore succeeds and is accordingly allowed. I will now consider the cross appeal.

CROSS APPEAL.

In this cross appeal, the learned counsel for the respondents/cross appellants filed Cross Appellants’ Brief Argument on 25/3/2008 dated same day. Therein, three issues for determination of the cross appeal were distilled, which are:-

a) Whether the plaintiffs have the locus standi to institute this action? (Ground I);

b) Whether the plaintiffs have disclosed reasonable cause of action against the defendants? (Ground 2);

c) Whether the learned trial judge was right in holding that the cross-appellant did not prove the 1974 customary marriage? (Ground 3).

On their own part, the learned counsel for the Appellants/cross-Respondents after being served with Cross Appellants’ Brief of Arguments also responded by filing their Cross-Respondent’s Brief, wherein they also adopted the issues raised in the cross appellants’ brief of argument. The first two issues which pertain to issues of Locus Standi and Cause of action are closely related, hence I will consider them together. As regards the issue of locus standi, the learned counsel for the cross appellants submitted that from the pleading of the cross respondents, as plaintiffs at the lower court, they did not show that the suit/action was brought in representative capacity and that since no evidence was given by plaintiffs in that regard, it can be deemed that they abandoned such claim. See Chime vs. Chime (2007) 3 NWLR (Pt. 701) 556. He said they did not show that they brought the action on behalf of the other three children of the deceased Ambassador L.O.V. Anionwu or the entire Anionwu family. He also submitted that the cross-respondents failed to establish what personal injury they would suffer or have suffered above other members of the Anionwu family. He also submitted that since Emmanuel Amechi Anionwu substituted by his wife the 1st plaintiff could be presumed to have been born out of wedlock, then the 1st plaintiff lacked locus standi to bring the action and he could therefore not have the right to contend that 2nd defendant/cross-appellant was not married to late L.O.V. Anionwu. It is also submitted by the counsel of the cross-appellants, that PW1 did not tell the lower court the basis on which the wife of the original first defendant (Emmanual Amechi Anionwu) could step into his shoes. He said in her testimony that the 2nd appellant/cross-respondent did not testify on what injury she suffered or the benefit she will derive or gain if the declaratory reliefs she claimed at the lower court were granted. He submitted that that the cross-respondents had no ground or pedestal whatsoever on which to stand and pursue their claims – See Abraham Adesanya vs. The President of the Federal Republic of Nigeria & Anor. (1981) 1 All NCR 1. The learned counsel referred to Exhibit E, the Consent Judgment where it was stated that Emmanuel Amechi Anionwu and all other beneficiaries of the estate of L.O.V. Anionwu shall have unrestricted access to No. 86 Awka Road, Onitsha. He said since the two cross-respondents lacked locus standi to bring the action as they did, their cases should be dismissed. See Gambioba & Ors vs. Nzesi & Ors (1981) All CR 584 at 580.

On the issue of cause of action, the learned cross-appellants’ counsel adopted his argument on locus standi supra and for this he referred to the case of Ibrahim vs. Osun (1988) 3 NWLR (Pt. 82) 257 at 267. He argued that there is no cause of action since the 2nd cross-appellant had submitted that no wrongful act and no damages was caused the cross-respondents as a result of the 2nd cross appellant’s action, such as her initiation into the Out Odu society or her attempt to enter Anionwu’s family house. He said all the documentary exhibits tendered by the 2nd appellant/cross-respondent did not establish any cause of action for the cross respondents against the 2nd cross-appellants.

In reply to the above submissions of the learned cross-appellants’ counsel, the learned counsel for the cross-respondents submitted that in determining whether a plaintiff has locus standi to institute an action, or whether the plaintiff disclosed cause of action against the defendants, the court must look at the statement of claim alone. See Thomas vs. Olufosoye (1985) 3 NWLR (Pt. 13) 523 at 536/537; Ibrahim vs. Osun (supra). He submitted that mere looking at paragraphs 6, 7, 8-15, 17 to 20 and 22 of the plaintiffs’ amended statement of claim clearly show shows that both plaintiffs have locus standi and they also have disclosed cause of action.

On the point raised by the cross-appellants that the cross-respondent did not show the personal interest PW1 (2nd cross-respondent) suffered by the use of the name “Mrs. Anionwu” by the 2nd defendant/cross-appellant or the larger family was affected by the conduct of the cross-appellants, the learned counsel for the cross-appellants contended in their statement of defence that the 2nd cross-appellant was the wife of L.O.V. Anionwu having

married him in 1974. He remarked that it was because of that false claim that she attempted to enter into the family house of late L.O.V. Anionwu at No.86, Awka Road Onitsha to celebrate her initiation into Otu Odu Society, but was stopped by the cross-respondents and if she had succeeded in entering the house it would amount to trespass and the 1st cross-respondent has the right to stop her from committing such trespass since he is the owner of the said premises and as the owner, he had the locus standi to institute this action and also the head of the family, to challenge 2nd cross appellant’s claim that she was his father’s wife or to parade herself as so.

I do not think the resolution of these two issues will require any dissipation of energy. The learned trial judge while dealing with the issues of locus standi and cause of action raised, had made a finding which in my view cannot be faulted when he stated on page 135 of his judgment as follows:-

“In the defendants’ counsel’s written address, learned counsel contended that the plaintiffs have no locus standi to institute this action and also that the action does not disclose any reasonable cause of action against the defendants. I have received very useful submissions from learned counsel for both parties on these Preliminary issues. I hereby resolve these issues against the defendants because on the pleadings of the plaintiff they showed not only their locus standi but also the reasonableness of their cause of action. The plaintiffs have claimed in their pleadings that they live at or lay claim to the late Ambassador L.O.V. Anionwu’s residence or family house at No. 86 Awka Road, Onitsha and that the 2nd defendant is masquerading as the late Ambassador L.O.V. Anionwu’s wife when she is not the wife of the late L.O.V. Anionwu and that based on that false claim she is attempting to forcibly break into the said late L.O.V. Anionwu’s family house at 86 Awka Road. Onitsha presently under the occupation of the 1st plaintiff as the wife of the late 1st son of the late L.O.V. Anionwu i.e. late Emmanuel Amechi Anionwu (deceased) 1st plaintiff). Moreover, the 2nd defendant pleaded that she is the only wife of the late Ambssador L.O.V. Anionwu in his life time and that their marriage was a monogamous marriage with a marriage certificate under the Marriage Ordinance celebrated at the Holy Trinity Cathedral, Onitsha on 26th December 1953. You can see there is no way one can correctly hold that the plaintiffs in view of the interest so pleaded do not have a locus standi to institute an action to ward off from the said family house a woman i.e. the 2nd Defendant) alleged to be not lawfully married into the Anionwu family…

Therefore I hold that the plaintiffs have the locus standi to institute this action and that this suit discloses a reasonable cause of action against the defendants who are alleged to be involved along with the late Ononenyi Sunday Anionwu in stage managmg, as it were, the purported marriage of the 2nd defendant for the late L.O.V. Anionwu more than 20 years after the death of L.O.V. Anionwu. In resolving these issues, this court was bound to look at the Amended Statement of Claim only. See Thomas vs. Olufosoye (1985) 3 NWLR (Pt.12) 523.”

As I stated above, the learned trial judge crowned it all and had properly answered the complaint of the cross-appellants on the two vexed issues of locus standi and cause of action which were even merely raised by defendants’ learned counsel in his written address. Be that as it may. It is settled beyond dispute that issues of locus standi is very fundamental to the extent that when raised by a party, it must be determined first as it borders on jurisdiction. See Bankole vs. Dada (2003) 11 NWLR (Pt. 830 174; Iyanda vs. Lamba II (2003) 1NWLR (Pt. 801) 267. As an issue which entails the capacity or competence of a party to institute an action, it therefore concerns issues of jurisdiction it must be treated first and if a party suing is found to lack locus standi that will be the end of the suit as it must be struck out as the court lacks jurisdiction. See NIB Invest WA vs. Onosoyi (2006) 4 NWLR (Pt. 969) 17. To determine whether the plaintiff has locus standi, the court is to refer to the statement of claim only. See Thomas vs. Olufosoye (supra). The pleading, i.e. Statement of Claim also must show that the claimant has personal interest which had been breached or injured or about to or likely to be injured or affected by the action of the defendant. See Alhaji Olorunkanmi Ajao vs. Mrs. L.E. Sonola & Anor (1973) 5 SC 119; Quo Vadis Hotels vs. Commissioner (1973) 6 SC 82.

In the instant case, the depositions by the plaintiffs/appellants/cross respondents in their joint amended statement of claim clearly show that they have locus standi to institute the action as properly analyzed in the excerpt of judgment of the lower court reproduced supra. It is not the business of the court to bother itself with anything such as evidence led on the case when determining whether the plaintiff had locus standi to institute the action as the learned cross-appellants’ counsel suggested. It suffices, if the statement of claim only, is looked at and is found to have disclosed locus standi and cause of action. In recent case of A.G. Lagos State vs Eko Hotels Ltd. (2006) 18 NWLR (1011) 378, the Supreme Court gave a wide definition of locus standi when it state per Niki Tobi JSC

at page 451 as below:-

“A person who is in imminent danger of any conduct of the adverse party has locus standi to commence an action. See Olawoyuin vs. Attorney-General of Northern Region (1961) All NLR 269,. Gamoila vs Eresi (1961) 1 All NLR 584, (1961) 2 SCNLR 232. A person has locus standi not only because he is connected or in close proximity with the suit or action but that the result of any litigation outside him will directly affect his legal rights and obligations and to his detriment. Of course the person must prove that the civil right will be affected or are affected in the matter. That is the essence of Section 6 (6)(b) of the 1999 Constitution …. ”

It is clear from the pleading, that the plaintiffs by bringing their action were wary of the fact that their personal interests would be jeopardized or were in imminent danger of being or will be adversely affected by the actions of the 2nd defendant/cross-appellant, such as her claim to be wife of L.O.V Anionwu; her attempt to forcefully enter the family house occupied by the 1st plaintiff/cross-respondent plus instances of parading herself as Late Ambassador’s wife, despite the fact that the 2nd plaintiff/cross-respondent was monogamously married to the late ambassador vide Exhibit A couple with the existence of letter of Administration in favour of the two cross-respondents Exh. B. I think the depositions in the pleadings of the plaintiffs in their amended statement of claim, if cursorily looked at, they (plaintiffs) can be said to have locus standi and they have also shown sufficient interest in the suit that they had instituted at the lower court. The learned trial judge is perfect in so holding.

On the learned cross-appellants’ counsel’s submission that the action of the plaintiffs did not disclose any cause of action, I do not share or endorse his stance on that. To my mind, cause of action simply means a combination of facts and circumstance which give rise to a party or complainant to sue or file an action/claim in court to seek remedy or redress. It also includes all things which are necessary to give a right of action and every material fact which has to be proved to entitle the plaintiff or complainant to succeed. In the instant case, the combination of facts and circumstance prevailed, such as the claim by 2nd defendant/cross-appellant to have been married under customary law to late Ambassador L.O.V. Anionwu, even though the latter had a valid and subsisting monogamous marriage contracted under the Ordinance; the series of incidences of parades by her that she was his wife and her efforts or attempt to enter the matrimonial or family home of the 1st Plaintiff/appellant/cross respondent i.e. No. 86 Awka Road, Onitsha etc. are all sufficient and cogent enough to give the plaintiffs/cross-respondents the right to file their claims against the cross-appellants at the lower court to seek the declaratory reliefs. See Egbe vs. Adefarasin (No.2) 1987) 1 NWLR (Pt. 47) 1; Thadent vs. National Bank of Nigeria (1972) 1 SC 105; Elabonjo vs. Dawodu (2006) 15 NWLR (1001) 76; P.N. Udoh Trading Co. Ltd. vs. Abere (2001) 11 NWLR (Pt.723) 114; Savannah Bank vs. Pan Atlantic Shipping & Transport Agencies (1987)1 NWLR (Pt. 49) 212.

Thus, the result of all that I have said above is that the two issues for determination on locus standi and cause of action are resolved against the defendants/respondents/cross-appellants and in favour of the plaintiffs/appellants/cross-respondents herein.

Issue No.3

This third issue queries whether the learned trial judge was right in holding that the cross-appellants did not prove the 1974 customary marriage. The learned counsel for the cross-appellants submitted that the learned trial judge ought not to have considered and made pronouncement on the issue of the 1974 customary marriage and determine it as it was not an issue before the court, since the cross-appellants did not counter-claimed and issues were not joined on it. The learned counsel for the cross-appellant then left the issue and went ahead to challenge the trial judge’s comments somewhere in his judgment where he commented on the behaviour and probity of the testimonies of the defence witness and his observation on the unworthiness of their testimonies. I do not want to delve much on demeanour of the defence witnesses since it is trite that where issue on credibility of witnesses is raised, an appellate court has very limited power to interfere. As an appellate court, we can only interfere with credibility of witness only when the trial court decided to believe a witness quite contrary to the trend of accepted evidence or where oral testimony is contrary to the contents of a written document. None of these circumstances is applicable in this instant case. See Lawal Buraimoh Fatoyinbo & Ors VS. Saliatu Abike Williams (alias Samiu) & Ors (1956) 1 FSC 87;Fashanu VS. Adekoya (1974) 1 All NLR (Pt. 1) 35; Agbonigo VS. Aiwereoba (1988) 1 NWLR (Pt. 70) 325.

Then on the core issue of customary marriage which is the pith of the complaint raised on this 3rd issue, the learned cross-appellants’ counsel submitted that the trial court could infer the existence of customary marriage in the absence of direct evidence of bride price. He referred to the testimony of DWI who stated that there was such a marriage since he was from the side of 2nd cross-appellant or to consider the evidence of DW2 from which inference could be made that there was customary marriage from the surrounding circumstances. He then urged us to resolve this issue in his favour since the cross-respondents did not contest the 1974 marriage.

Replying to the cross-appellants’ counsel’s submissions on this third issue, the learned counsel for the cross-respondents submitted that issues were joined on the 1974 customary marriage as the cross-appellants pleaded that 2nd cross-appellant was married to late LOV Anionwu in 1974 as per paragraphs 3, 5 and 23 of their statement of defence and the cross respondents denied that. He said the learned trial judge was therefore right in holding that the cross-appellants did not prove the 1974 marriage. On the question whether customary marriage was actually proved, the cross-appellants’ counsel argued that the 2nd defendant/cross-appellant did not give evidence in support of her case or call her close uterine brothers to testify to that effect as none of the two defendants’ witnesses came from either Anionwu or Okolonji family (her own family).

Me think the submission of the learned counsel for the cross-respondents that issues were joined on the 1974 customary marriage cannot be assailed. Evidence was led by the cross-appellants through their two witnesses on the alleged marriage, likewise the PW1 when she stated in her testimony that such marriage never took place. That being the case, it becomes the duty of the trial court to resolve such issue having regards to the evidence led before it and resolve the dispute between the parties. The law places duty on a trial court to make its finding on evidence before it and to give full consideration of all issues raised or canvassed before it. See Mogaji vs. Odofin (1978) 8 SC 91; Oyekola vs. Ajibade (supra); Ojo vs. Adeleke (2002) 8 NWLR (Pt.768)223; Adeogun vs. Ekunrin (2002) 2 NWLR (Pt.856) 52 at 84/85.

Now the question IS “Was customary marriage between the late Ambassador L.O.V. Anionwu and the 2nd defendant/cross-appellant actually proved by the latter through the testimonies of their two witnesses?” The learned trial judge had duly analyzed the evidence of the defence presented before him. His assessment is in my opinion unassailable. Numerous decided authorities of this and the apex courts abound on how customary marriage could be proved. Notable among these cases is the case of Agbeja vs. Agbeja (1985) 3 NWLR (Pt. 11) 19 where it was held that in proof of customary marriage the evidence of the Head of the family is desirable to prove receipt of dowry but that an eye witness account of the transaction is essential. It was further held that before there can be a valid customary marriage dowry must be paid to the bride’s family. In the instant case no such evidence was led, hence a vital and essential ingredient of customary marriage was not proved by the cross-appellants as none of their defence witnesses gave evidence on such vital element which is a pre-requisite in a valid customary marriage. It is worthy of note, that the 2nd defendant/cross-appellant who claimed to be the wife of L.O.V. Anionwu by virtue of their customary marriage in 1974 though she was present in court throughout the period the defence opened its case as shown in the record, did not deem it proper testify. To me, she should be the best and most important witness to testify on when, how and where the marriage (if any) took place and on the amount paid to her or her family as dowry. This, unfortunately she did not do. The evidence led through DWs 1 and 2 also fell short of proof of bride price paid to the head of the 2nd defendants’ /cross-appellant’s family or to herself which the law says is the first step of a valid customary marriage. See Nsirim vs. Nsirim (supra). The learned trial judge is therefore correct in his finding that the cross-appellant did not prove the 1974 customary marriage. This third issue is therefore also resolved against the cross-appellants. In the result therefore, I see no merit in the cross-appeal. It fails and is accordingly dismissed by me.

On the whole, and for the avoidance of any doubt, the appeal of the appellants has merit. It therefore succeeds and is accordingly allowed. As regards the cross-appeal, it is adjudged unmeritorious and is dismissed accordingly. The decision of the lower court dismissing the suit/claim of the plaintiffs is hereby set aside. In its stead, the said appeal is allowed and all the reliefs sought by the plaintiffs/appellants at the lower court are hereby granted. The lower court’s order dismissing the cross-appeal is however hereby affirmed. No order is made as to costs, so each party should bear his own costs.

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Other Citations: (2009)LCN/3102(CA)