Sunil Kishinchand Bhojwani Vs Nitu Sunil Bhojwani (1996)
LAWGLOBAL HUB Lead Judgment Report
BELGORE, J.S.C.
The appellant, a Singaporean, filed a petition for divorce in the High Court of Lagos. Against this petition for the dissolution filed on 6th February 1995.
The respondent brought a motion seeking an order that as the appellant was not domiciled in Nigeria the High Court of Lagos or any High Court in Nigeria for that matter had no jurisdiction to hear the petition for the dissolution of the marriage.
The marriage between the parties was solemnized in England in accordance with the English Law. The petitioner/appellant was born in Singapore on 27th July 1961. The respondent was born in Lagos Nigeria on 10th May 1963. The petitioner is a company Director in Nigeria and has been directing the family business in Nigeria since 1979. On the motion that there was no jurisdiction to dissolve the marriage in any Court in Nigeria because the petitioner was not domiciled in Nigeria.
The trial court ruled it had jurisdiction. Against this ruling the respondent appealed to the Court of Appeal. The Court of Appeal set aside the ruling of the trial court and held that the petitioner was domiciled in Singapore and not in Nigeria as claimed by him.
The Court of Appeal arrived at its decision through a thorough examination of all the facts before the trial court some of which the trial court erroneously disregarded. Among these facts are the affidavits sworn to by the parties when the respondent was before the English Court in London seeking to make her children of the marriage wards of court. The respondent was taken to Singapore accompanied by the children during the political crisis in Nigeria in 1993.
She felt trapped there but she finally found her way to England where her parents were resident: the children she took along with her. Her application was granted for the children to be made wards of English Court. She finally filed her own petition for divorce in an English Court. The petitioner was busy pursuing the issue of jurisdiction in Nigeria and paid little attention to the proceedings in the English Court which assumed jurisdiction to hear the petitioner due to the residence qualification.
By the time the Court of Appeal delivered its judgment that the petitioner was not domiciled in Nigeria the English Court proceeded to hear the respondent’s petition for divorce and even though served with hearing notice, the petitioner made negative contribution to the hearing. The English Court finally heard the petitioner before it and granted a decree nisi.
The situation in Nigeria as regards this matter is that the hearing of the petitioner has not commenced: it is in the petty skirmishes of trying to find jurisdiction in Nigerian Courts to hear the petition. As a result of the decision of the Court of Appeal and relying on the clear provisions of S. 2(2)(a) Matrimonial Causes Act (Cap. 220, Laws of the Federation of Nigeria 1990) which states:
“(2) Proceedings for a decree
(a) of a dissolution of marriage:
………………………….
may be instituted under this Act only by a person domiciled in Nigeria”.
The case could not go on in the trial court due to the appeal to this court. The petition before the English Court has been heard and determined and a decree nisi entered for the dissolution of the marriage. This court has no jurisdiction to stop an English Court from hearing a petition neither can we decree a stay of proceedings extra-territorially against a foreign court. The best thing for the appellant would have been to seek his remedies in the English Courts. It is not denied that his wife has successfully obtained a decree nisi for the dissolution of their marriage before the English Court, he has not appealed against that decision. Faced with the fact of the decision of the English Court, what use is our discourse further into this preliminary issue of jurisdiction and domicile We shall be flogging a dead horse. The appellant’s remedies are not here but in the English Courts.
Our Courts are to determine issues that are live. To now delve into the issue of domicile and the consequent jurisdiction of Nigerian Courts will merely be academic. This court will not indulge in that. If the decree nisi granted in England is to be challenged, this court is not the forum. It is true there is possibility of some moves against the registration of the English Court’s judgment (Foreign Judgments (Reciprocal Enforcement) Act – Cap. 152. Laws of Federation of Nigeria 1990). For the moment this court is not seised with that issue. This appeal therefore is overtaken by events because it is not possible to send the lower courts on adventure of attempting any more decree on the petition for the dissolution of the marriage already made elsewhere albeit out of this country’s territory.
I therefore strike out this appeal with no order as to costs.
Other Citation: (1996) LCN/2682(SC)
