Theophilus A. Awobokun & Anor V. Toun Adeyemi (1970)

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ADEMOLA, C.J.N. 

The respondent in this appeal was the caveatrix in a matrimonial proceeding before the High Court of the Western State holden at Ibadan. She filed a caveat against the notice of marriage between the 1st appellant and the 2nd appellant on the ground that the 1st appellant had married her in accordance with the Customary law and that she was expecting a baby by him, and under section 47 of the Marriage Act it would be illegal for him to get married to the 2nd appellant under the Marriage Act.
For convenience, the respondent in this appeal will be hereinafter referred to as the caveatrix, the appellants who were the original respondents in the matter will be referred to as the respondents.

The learned Chief Justice Western State who heard the matter, on 22nd April, 1968 ordered that the caveatrix should on or before 26th April, 1968 file an affidavit setting out all the facts she was relying upon to prevent the marriage. At the same time he proceeded to question the caveatrix as to her improper conduct relating to the action in Court in which she was alleged to have been in contempt of the Court. She was subsequently convicted summarily for being in contempt of the Court.

Therafter the caveatrix did not proceed further with the matter before the Court; she did not file the affidavit ordered but asked her solicitors to withdraw the case from Court. Accordingly the solicitors wrote to the Court withdrawing the case and stated as one of the reasons that the caveatrix had been troubled, distressed and frightened by the unexpected turn of events resulting in her conviction by the Court and that in her present state of health she had not the nerves to continue the matter further and prayed to be excused from further attendance and that the matter should be withdrawn.

After a notice of withdrawal had been duly filed at the instance of the Court – the Court relying on Order 28 of the High Court (Western State) Civil Procedure Rules – the learned Chief Justice at the next hearing proceeded to “cancel” the caveat and ordered the caveatrix to pay 40 guineas costs and no compensation to the 1st respondent and to the 2nd respondent 40 guineas cost and 50 guineas compensation. The caveatrix promptly sought leave to appeal against this order.

Her application was heard by the Learned Chief Justice and on the 16th September, 1968 was dismissed with 20 guineas costs. Leave was later sought in the Court of Appeal Western State to appeal against the order and this was granted and in due course the appeal was heard by that Court.
The appeal of the caveatrix was allowed; the Court held that costs and compensation could only be awarded in circumstances stated in section 47 of the Marriage Act and no more.

The respondents were aggrieved at this decision and have appealed to this Court. Eleven grounds of appeal were filed and counsel sought leave of the Court and was granted leave to argue one additional ground.

It is at this stage convenient to set out section 17 of the Marriage Act on which the Western State Court of Appeal based its decision. It reads:
“17. The Judge may award compensation and costs to the party injured, if it appears that a caveat was entered on insufficient grounds.”

Counsel for the caveatrix arguing the appeal before the Western State Court of Appeal submitted that the Chief Justice of the High Court was in error to have awarded costs and compensation against the caveatrix since it was clear from the proceedings that the procedure provided in sections 15 and 16 of the Marriage Act had not been complied with and there was no finding as to the sufficiency or otherwise of the grounds of the caveat.

These two sections set out the procedure to be adopted by the Court after a caveat had been entered for the purpose of hearing the complaint and for the removal of the caveat or otherwise. Section 15 provides: –

“15. Whenever a caveat is entered against the issue of a certificate … such Judge shall thereupon summon the parties to the intended marriage, and the person by whom the caveat is entered, to appear before him in the High Court of the Region, and shall require the person by whom the caveat is entered to show cause why the Registrar should not issue his certificate and shall hear and determine the case in a summary way subject to a right of appeal…”
and section 16 reads:

“16. If the Judge decides that the certificate ought to be issued, he shall remove the caveat by cancelling the word ‘Forbidden’ in the marriage notice book, in ink, and by writing in such marriage notice book, immediately below such entry and cancellation, the words ‘Cancelled by order of the High Court’ and signing his name thereto.”

In effect the submissions made by counsel and accepted by the Western State Court of Appeal postulate that sections 15 and 16 are conditions precedent to any action that might be taken in accordance with section 17 of the Act aforesaid. In other words, the learned Chief Justice was under a duty to call parties in the matter together before him and to hear the caveatrix as to the reasons why the certificate to marry should not issue, and that this procedure not having been adopted, the learned Chief Justice was not in a position to determine which of the parties is the party injured and who should be entitled to costs and compensation in accordance with section 17 of the Act.

Before us, counsel for the respondents in this matter argued in two ways. He stated that if the caveat had not been removed and still subsists (as it was argued by counsel for the caveatrix in the Court of Appeal), it would mean that there had been no hearing in the court of first instance and the Court of Appeal should have sent the case back for hearing.

On the other hand, counsel said he would prefer to argue on the basis that there was a hearing of the caveat in the court of first instance. What he submitted to us as a hearing was the fact that the learned Chief Justice of the High Court ordered the caveatrix to verify her grounds of objection to the intended marriage by an affidavit setting out all the facts she intended to rely upon.

Counsel added that although the affidavit was not filed, the notice of withdrawal which followed and the subsequent order by the learned Chief Justice “cancelling” the caveat were all part of the hearing.

We are unable to agree with counsel that these proceedings before the learned Chief Justice of the High Court constitute hearing and determination as envisaged by section 15 of the Marriage Act. It is true that the Act made no provisions as to how a caveat can be abandoned once it has been entered; in our view the Act is silent on this point for a purpose. We are of the view that once a caveat is entered the purpose is that it must be pursued so as to ensure that the parties to the proposed marriage may be free once and for all to celebrate the marriage or be forbidden to marry.

In our opinion Order 28 of the Rules of the High Court has no application here. The order made by the learned Chief Justice that “the caveat is hereby cancelled” is in our view inappropriate. The proper order would be to cancel the word “Forbidden” already made in the register and for the Chief Justice to sign his name thereto as provided by section 16.

Before this order could be made, it was the duty of the learned Chief Justice to effect the presence of the parties and to deal with the matter summarily as enjoined by section 15 of the Act. A summary trial in this case may only involve asking questions of the caveatrix by the judge so that the reasons or grounds for filing the caveat might be explained. In the present case, it was never explained. From the reasons given for the withdrawal of the matter before the learned Chief Justice, it is obvious that the caveatrix got frightened when she was convicted for contempt of court and decided to abandon her case.

So that the real reason or reasons for entering a caveat have not been heard. Earlier the reasons-stated for entering the caveat were:-
(1) previous marriage under native law and custom, and
(2) that the caveatrix was expecting a baby by the 1st appellant.
But particulars of all these have not been given. In effect, there had been no hearing and the learned Chief Justice was not in a position to decide the sufficiency of grounds for entering the caveat.

It is not necessary to decide for the purposes of this case what procedure should be adopted by a Judge in the case of a caveatrix who refused to appear when summoned by the Judge to appear and substantiate the grounds of objection to the issue of the certificate of marriage. In such a case it may be open to the Judge to dismiss the matter before him and then proceed to remove the caveat.

For the above reason, we find ourselves in agreement with the views of the Western State Court of Appeal that there was no hearing by the learned Chief Justice of the matter before him in accordance with section 15 of the Act and that the caveat had not been properly removed, and consequently he was not in a position to know whether or not there were sufficient grounds for entering the caveat and he was therefore in error in awarding costs and compensation to one side.
This appeal is therefore dismissed.

There will be costs of this appeal in favour of the respondent, the caveatrix, which are assessed at 35 guineas.

Other Citation: (1970) LCN/1752(SC)