Casimir Odive V. Nweke Obor & Anor.(1974)
LawGlobal-Hub Lead Judgment Report
O. ELIAS, C.J.N.
This is an appeal against the ruling of Agbakoba, J., in Suit No. 0/5/1972 given in the Onitsha High Court on June 6, 1973, and in which the learned trial Judge upheld a preliminary objection raised by the counsel for the defendants regarding the competence of the court to hear and determine the claim as laid. In the action, the plaintiff claims against the defendants, a man and a woman, jointly and severally:-
(1) An order of the court compelling the defendants to return to the plaintiff the plaintiff’s children, namely, Regina Ukamaka Odive, Benedette Ebelechukwu Odive, John Muoto Odive and Sussanna Chikodili Odive.
(2) 900pounds damages for the loss of the services of the aforesaid four children as specified hereunder:
(i) 400pounds for the loss of the services of Regina Ukamaka Odive.
(ii) 200pounds for the loss of the services of Benedette Ebelechukwu Odive.
(iii) 200pounds for the loss of the services of John Muoto Odive.
(iv) 100pounds for the loss of the services of Sussanna Chikodili Odive.
When the case came up for hearing, pleadings had been ordered by the court and duly filed and delivered by both parties. The relevant facts are that the plaintiff averred in his Statement of Claim that in 1949 he was married to the 2nd defendant according to customary law, followed in 1950 by a marriage between the same parties under the Marriage Act, Cap. 115 of the Laws of Nigeria. The plaintiff also stated that all the four children born to him by the 2nd defendant were the issues of the marriage. Counsel for the defendants raised a preliminary objection in the following terms:
“I wish to raise a preliminary objection with respect to the claim –
- Return of children. It ought to be by way of petition since marriage under the Act is foundation of the claim.
- An action per quod servitium amissit cannot be joined to claim for return of children.”
The learned trial Judge, after listening to both sides in respect of the objection, gave an adjourned ruling on June 6, 1973, in which he upheld the objection and struck out the case.
Against this ruling, the plaintiff/appellant has appealed on the following two grounds which were the only ones argued before us out of the four that were filed. These grounds are:
“(1)(a) That the learned trial Judge erred in law in striking out the whole suit despite his finding that the plaintiff/appellant could sue for the loss of services of his children and when the only point for decision before him was whether the action could be instituted by Writ of Summons.
(b) That even if the first arm of the claim should be brought by petition, the learned trial Judge was wrong to strike out both the first arm and the second arm of the claim whereas the second arm of the claim – damages for loss of services – could properly be instituted by Writ of Summons.
(c) That the learned trial Judge misdirected himself in law and erred in law in purporting to determine the merits of the claim for damages for loss of service without hearing any evidence from the parties and when that issue was not then before him at the stage of the proceedings for determination.
(2)(a) That as the plaintiff’s claim for the return of his children is not in relation to proceedings under the Matrimonial Causes Decree, 1970, for a decree or declaration of a kind referred to in paragraph (a) or (b) of Section 114(1) of the said Decree and as the claim does not relate to concurrent, pending or completed proceedings as mentioned in Section 114(1) paragraph (a) or (b) of the aforesaid Decree, the claim is not required by the combined effect of the Sections 54(3) and 114(1) of the Matrimonial Causes Decree, 1970, to be instituted by petition. The learned trial Judge was therefore wrong in law in holding that the plaintiff’s claim for the return of his children must be by Petition.
(b)That as the plaintiff’s claim for the return of his children is not one in relation to proceedings for a decree or declaration as referred to in paragraph (a) or (b) of Section 114(1) of the Matrimonial Causes Decree, 1970, and as no other special provisions are made for cases such as the plaintiff’s present claim, then the proper manner to come to court is by action commenced by Writ of Summons and the learned trial Judge was therefore wrong in holding otherwise.”
In arguing ground 1, Mr. Egonu, learned counsel for the appellant, drew attention to the fact that the plaintiff’s claim against the defendants is joint and several and that an action for loss of the services of the four children is a common law action which can properly be brought only by a Writ of Summons, as was done in the present case. According to him, the learned trial Judge was himself aware of this position in law when he said as follows:
“If on the other hand the plaintiff does not desire a dissolution or judicial separation he can maintain an action per quod servitium amissit by Writ of Summons against the 1st defendant omitting any reference to the 2nd defendant.”
He also submitted that the learned trial Judge erred in law in considering the merits of the claim for loss of the services of the children citing Hawkesworth v. Hawksworth (1861-1867) AER 314 and Lough v. Ward (1945) 2 AER 338, when in fact the matter was not before him at that stage. It was his submission that the learned trial Judge was wrong in dealing with the issue of loss of services without having heard evidence on the point. Again, the learned trial Judge struck out the claim for loss of services because he held that the claim was not initiated by due process of law, when the Judge had himself already agreed, as stated above, that the action for loss of services could come to court by way of a Writ of Summons. Under this ground of appeal, learned counsel finally submitted that, assuming that the first arm of the claim in respect of the return of the children to the plaintiff should have been by petition rather than by a Writ of Summons, the second arm of the claim in respect of loss of the services of the children should not have been struck out as well. We think that there is merit in this contention.
In relation to the second ground of appeal which concerns the first arm of the claim, namely, the return of the children to the plaintiff, learned counsel for the appellant submitted that the claim was properly laid by means of a Writ of Summons. He argued that counsel for the defendants/respondents was incorrect in suggesting that the claim in respect of the return of the children should have been by petition in accordance with Section 54(3) and Section 114(1)(a) and (b) of the Matrimonial Causes Decree, 1970, since the claim as laid by the appellant was a disguise for a claim of custody of the children. We think it helpful to set out the provision of Section 54(3) of the Matrimonial Causes Decree, 1970, as follows:-
“54 (3) Proceedings of a kind referred to in paragraph (c) of the definition of ‘Matrimonial Cause’ in Section 114(1) of this Decree that are in relation to proceedings under this Decree for a decree or declaration of a kind referred to in paragraph (a) or (b) of that definition –
(a) may be instituted by the same petition as that by which the proceedings for that decree or declaration are instituted; and
(b) except as permitted by the rules or by leave of the court, shall not be instituted in any other manner.”
It is also pertinent to consider Section 114(1)(a) and (b) which reads as follows:-
“114(1) In this Decree unless the contrary intention appears-
‘adopted’, in relation to a child, means adopted under the law of any place (whether in or out of Nigeria) relating to the adoption of children;
‘appeal’ includes an application for a rehearing;
‘court’ or ‘the court’, in relation to any proceedings means the court exercising jurisdiction in those proceedings by virtue of this Decree;
‘court of summary jurisdiction’ means a magistrate’s court or District Court;
‘crime’ means an offence punishable by imprisonment;
‘cross-petition’ includes an answer in which the respondent to a petition seeks decree or declaration of a kind referred to in paragraph (a) or (b) of the definition of ‘matrimonial cause’ in this subsection
‘decree, (not being a Decree having effect as an enactment made by the Federal Military Government) includes a decree absolute or decree nisi, a judgment, and any order dismissing a petition or application or refusing to make a decree or order;
‘marriage conciliator’ means a person authorised to endeavour to effect marital reconciliations or a person nominated by a Judge, in pursuance of Section 11 of this Decree, to endeavour to effect a reconciliation;
‘matrimonial cause’ means –
(a) proceedings for a decree of –
(i) dissolution of marriage;
(ii) nullity of marriage;
(iii) judicial separation;
(iv) restitution of conjugal rights; or
(v) jactitation of marriage;
(b) proceedings for a declaration of the validity of the dissolution or annulment of a marriage by decree or otherwise or of a decree of judicial separation, or for a declaration of the continued operation of a decree of judicial separation, or for an order discharging a decree of judicial separation.”
It is quite clear that the present action by the plaintiff for the return of the four children to him cannot be regarded as relating to “concurrent, pending or completed proceedings” within the meaning of Section 114(1)(a) or (b), nor is the claim required by the combined operation of Sections 54(3) and 114(1) of the Matrimonial Causes Decree, 1970, to be brought by a petition. This is not an action for dissolution of marriage, judicial separation, restitution of conjugal rights, or similar matrimonial reliefs.Mr. Umeadi, learned counsel for the defendants/respondents, replied that the plaintiff’s claim as worded is a disquise for a claim of custody and that it should as such be brought by way of petition in accordance with Sections 54(3) and 114(1) of the Matrimonial Causes Decree, 1970. It was his contention that the plaintiff’s claim amounted to an action of detinue which does not apply to a claim for the return of human-beings like the four children, but only in respect of the return of goods or chattels. We think that this submission is untenable, since an action for enticement such as was involved in Lough v. Ward (1945) 2 AER 338, necessarily involves the return of children to their lawful parents or other guardians in proper cases.
We think that the learned trial Judge was clearly in the wrong when he decided to uphold the preliminary objection of counsel for the defendants at the particular stage in the proceedings when the Statement of Defence had already been filed and the issues joined between the two parties.
The learned trial Judge should have pointed out to counsel for the defendants that the preliminary objection should have been made after the delivery to him of the Statement of Claim and before filing his Statement of Defence. Another important point in this appeal is that, once issues had been joined between the parties including an allegation by the 1st defendant that the marriage between him and 2nd defendant had been made under customary law, it was wrong to entertain a preliminary objection without any further evidence on the merits.
The appeal accordingly succeeds, and it is allowed. The ruling of Agbakoba, J., in the Onitsha High Court, in Suit No. 0/5/1972 delivered on June 6, 1973, is hereby set aside. It is hereby ordered that the case be heard by him on the merit. Costs assessed at N90 are awarded to the appellant as costs in this court.
SC.290/1973
