Ogbero Egri Vs Ogbero Ukperi (1973)
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FATAYI-WILLIAMS, JSC.
This case originated in the Oleh Customary Court in the Mid-Western State of Nigeria where the plaintiff (now respondent) claimed against the defendant (now appellant) as follows:- “Return of plaintiff’s wife called Lucky Onumerulu Ukperi detained at Emede by the defendant since December, 1968, despite demands for her return.”
It is common ground that Lucky Onumerulu Ukperi is the daughter of the defendant who disputed the claim in his testimony before the Customary Court. After considering all the evidence adduced before it, the Customary Court made the following observation with respect to the testimony of the plaintiff. “It is court’s opinion that before marriage can be established according to Isoko general custom, consent of the girl and the parents must be first of all sought and gained by son-in-law for some number of days through a middleman or representative who must be a native or chief of the area with which the plaintiff pretended to marry. The bride price must be fixed properly accompanied with big ceremony of drinks.
Over 10 to 15 years ago, marriages in Isoko are always represented by Union members or good representative of the village. The village in which the plaintiff claims to have been married is no exception. Court did not believe plaintiff’s story in that he negotiated for the girl personally. Court is also in doubt of the 1st witness statement as he is a friend from Uhio in Udu Clan to represent plaintiff in such ceremony. Bride prices for Isoko since over 7 years has been reduced to £60 and not £120 as plaintiff stated. The area in which plaintiff claim married was even reduced to £40. It is a clear matter that little addition must be made to strangers and not double it to be £120 as alleged by the plaintiff. The varieties in which the instalments were paid are questionable i.e. £60, £20 for only a distance of one month.
The plaintiff failed to ask for a written document for all these fabulous amount he spent in so called marriage.” The court then dismissed the plaintiff’s claim after finding finally as follows:- “The plaintiff did not show cause why he failed to gain consent from the girl nor her parents or why no representative from the town and no other middleman from outside except his member of his family. There are no evidence adduced to establish marriage or to pay that heavy amount of £120 for a lady he didn’t like.” The plaintiff then appealed against this decision to the Magistrate’s Court, Oleh. The learned Magistrate, after hearing arguments, dismissed the plaintiff’s appeal and confirmed the decision of the Oleh Customary Court. Still dissatisfied with the decision, the plaintiff appealed to the Ughelli High Court. The only ground of appeal filed and argued before the High Court was that the judgment was against the weight of evidence. In a reserved judgment allowing the appeal, the learned Judge observed as follows:- “It is important at this stage to state that the essence of a claim for return of wife in a Customary Court is to determine the validity of the marriage contracted under the particular customary law and practice prevalent in that area when a wife fails or refuses to return to the husband.
Such claims are justifiable and the general opinion of the judge in this area is that it is impossible to limit by construction the beneficial jurisdiction of the Customary Court to grant a sort of mandatory relief to a husband against the parents of the wife where it is just and convenient to do so. When such a relief is granted and the parents fail to return their daughter to the husband on any ground the only right open to the aggrieved husband is to claim a refund of the bride price as the Customary Court cannot enforce the observance of the order. The court cannot compel a wife to return to her husband as any attempt to do so will be an infringement of her fundamental rights under the Constitution of this country.”
After stating that the customary court did not sufficiently and properly evaluate the whole evidence before it before entering judgment for the defendant, the learned Judge finally found as follows:- “It is my view that the Oleh Customary Court did not properly take advantage of seeing and hearing the witnesses in this case and I consider that the whole evidence was at large before the learned Magistrate on which he could form an independent opinion. I am satisfied in my mind that both the Customary Court, Oleh and the learned Magistrate were certainly wrong in holding that no marriage was validly negotiated and concluded between the appellant and respondent’s daughter. In my view, when the bride price was fixed and paid and the girl was escorted to the house of the appellant a valid marriage under native law and custom was contracted. In no part of its judgment did the Customary Court ever state why the appellant had decided to initiate these proceedings against the respondent. On a proper assessment of the evidence given in the case judgment should have been entered for appellant in the Customary Court. It is therefore my judgment that the appeal succeeds, and the plaintiff’s claim against the respondent for the return of his wife Onumerulu is hereby allowed.”
The learned Judge then ordered that the bride price which he then proceeded to fix arbitrarily at £100 should be refunded to the plaintiff. The reason which he gave for making this order is- “to avoid another action being instituted by the appellant against the respondent, especially when it is shown that the panel of the Customary Court, Oleh, which entered judgment for the respondent has not changed, and there is the likelihood of a conscious bias by that court against the appellant in the amount of the bride price to be refunded to him.” He then observed that it would be difficult to get an unbiased evidence if the appellant should again go to the Oleh Customary Court to ask for his bride price. After setting aside the concurrent judgments and orders of both the Oleh Customary Court and the Oleh Magistrate’s Court, the learned Judge finally ordered that – PAGE| 4 “1. The respondent is to return the appellant’s wife, Lucky Onumerulu Ukperi to the appellant at Iyede within thirty days from the date of judgment. 2. On the failure of the respondent to return the said woman to the appellant within the time herein stated, the respondent shall pay the sum of £100 to the appellant which is refund of the bride price paid by the appellant to the respondent for the respondent’s daughter which he gave in marriage to the appellant.” In the appeal now before us against this judgment, a number of complaints were made by the learned counsel for the defendant/appellant. Firstly, it was contended that the learned trial Judge was in error in ordering payment of the bride price of £100 especially as the case of the defendant/appellant in the Oleh Customary Court which that court accepted, was that there was no marriage and that the question of repayment of bride price could not, therefore, have arisen in the circumstances. Thirdly, it was submitted that the learned trial Judge should not have substituted his own view of the customary law of the area for that of the Oleh Customary Court which heard all the witnesses and which is empowered by the provisions of Section 6 of the Mid-Western State Customary Courts Edict (No. 38 of 1996) and of Order 10 rule 6(5) of the Customary Courts Rules, 1966 (M.N.L.N. 37 of 1967) made thereunder, to state what is the appropriate customary law applicable without evidence being adduced. Lastly, learned counsel pointed out since the only ground of appeal argued before the learned Judge was that which complained that the judgment was against the weight of evidence, it was not open to the learned trial Judge to state what he believed to be the appropriate customary law and then to proceed, albeit erroneously, to apply it.
For the plaintiff/respondent, learned counsel conceded that, ordinarily, the view of the customary court in the area as to the appropriate customary law should have prevailed, but submitted, nevertheless, that having regard to the evidence adduced in support of the plaintiff’s case at the trial, the learned Judge was quite in order in stating that the customary court did not take advantage of seeing and hearing the witnesses particularly as there was detailed evidence as to the ceremony of marriage. For this reason, learned counsel then urged us not to disturb the findings of the learned Judge.
There are many disturbing observations and conclusions in the judgment of the High Court in this case. In the first place, the learned Judge seemed to have completely overlooked the provisions of Sections 6(1)(c), 22(a), 23(3) (b) and 23 (5) of the Customary Courts Edict of the Mid-Western State (No. 38 of 1966). Moreover, he did not appear to have adverted to the provisions of Order X rule 6(3) and (5) of the Customary Courts Rules which were made by virtue of the powers conferred on the Chief Justice of the Mid-Western States by Section 69 of the said Edict.
PAGE| 5 If he had taken time to consider the scope and implications of the provisions of the above Edict and of the Rules made thereunder, he would have realised that in the circumstances of the case in hand and having regard to the fact that the customary court for the area is the Oleh Customary Court, the view of that court as to the appropriate customary law, subject only to certain exceptions, which do not apply here, is paramount. For ease of reference, the provisions are reproduced hereunder. It is provided in Section 6(1) (c) of the Edict as follows:- “6(1) A person shall not be qualified to hold office as Pres
Other Citation: (1973) LCN/1663(SC)
