Patrick I. Ugbah V. Mrs Veronica Ugbah & Ors. (2008)
LawGlobal-Hub Lead Judgment Report
DALHATU ADAMU, J.C.A.
The respondents as plaintiffs before the High Court of Lagos State (Lagos Division) sued the appellant by filling a writ of summon and a statement of claim both dated and filed on 9/6/06 claiming the following reliefs:-
“1. An order that at the Defendants expense, the 2nd & 3rd claimants should continue their education in Nigeria or abroad, up to University level and/or adequate professional level, as their capabilities may permit.
2. An order compelling the Defendant to pay N50,000.00 each to the 1st claimant and the 2nd and 3rd claimants every month each comprising the monthly maintenance allowance for the said 1st claimant and monthly welfare/upkeep for the 2nd and 3rd claimants respectively.
3. An order directing the Defendant to get an alternative accommodation for the claimants and/or pay the sum of N250,000.00 every year to the claimants to enable them get a proper accommodation.
4. An order condemning the Defendant in the costs of this suit.” – See the endorsed statement of claim at page 7 of the record of appeal.
On or against the above claims and before the filing of his statement of defence, the defendant/appellant (hereinafter called “the appellant”) filed a notice of preliminary objection dated 10/7/06 and filed on 11/7/06 In which he raised an objection against the competence of the suit and urged the trial Court to strike it out on the ground of lack of jurisdiction on the part of the trial court to adjudicate on the suit. The three (3) grounds of the preliminary objection can be reproduced as follows:
“(1) the claimants are seeking the reliefs of maintenance on the grounds of marital relationship and parental obligation.
(2)the suit can thus only be commenced under the Matrimonial Causes Act.
(3)Rather the suit is commenced by a writ of summons with the statement of claim and governed by the Lagos State Rules of Civil Procedure.”
The preliminary objection was heard by the learned trial judge on the written addresses filed respectively by or on behalf of the parties. In the bench ruling delivered immediately after hearing the oral submissions of learned Counsel for the parties, the trial Court overruled and dismissed the preliminary objection on 9/10/06. Thus the Court held that the suit was properly brought or commenced and it had jurisdiction to hear it.
Being aggrieved and dissatisfied with the above ruling of the trial Court, the appellant filed his appeal to this court against it by his notice of appeal dated 9/10/06 and filed on 11/10/06 containing only one ground of appeal. The appellant in his brief of argument dated and filed in this Court on 23/4/07 framed the following lone or single issue for determination:-
“ISSUE FOR DETERMINATION: WHETHER A SUIT FOR THE RELIEFS OF MAINTAINANCE AND EDUCATION AND WELFARE OF CHILDREN can be commenced under any law other than the Matrimonial Causes Rules 1983.”
In the respondents brief dated and filed on 11/1/08 but deemed properly filed and served by this Court, the above lone issue of the appellant is adopted though reframed and reworded as follows: “whether the trial Court rightly assumed jurisdiction to entertain the suit herein”.
The respondents also filed a notice of preliminary objection dated and filed on 11/1/07 which though embedded and argued in the respondents brief was also formally moved before the hearing of the appeal on 6/5/08.
It is the duty of this Court to begin by consideration of the notice of preliminary objection before delving into the appeal proper or before consideration of the above lone issue. This is because the primary purpose of every preliminary objection is to determine the proceedings in-lamine (whether on appeal or at 1st instance) and dispensing, if need be, with the need to go into the substance of the suit or appeal as the case may be. In other words a preliminary objection challenging or attacking the competence of the action or appeal as in the present case in similar to or likened to a challenge against the jurisdiction or competence of the Court to hear and determine the said action or appeal as the case may be and if not heard timeously at the initial stage may lead to an exercise in futility since the whole proceedings conducted in absence of jurisdiction will be a nullity however well conducted it might have been – See MADUKOLU Vs. NKEMDILIM (1962) 2 SCNLR 341; ICON LTD Vs. F.B.N LTD (1995) 6 NWLR (Pt. 401) 370 at 578-79; OBI Vs. OWOLABI (1990) 5 NWLR (Pt. 153) 702; ADELEKAN Vs. ECU – LINE NV (2006) 12 NWLR (PT.993) 33; ANGBARE Vs. SYLVA (2007) 18 NWLR (Pt.1065) 1 at P.28; and N.I.W.A Vs. STB PLC (2008) 2 NWLR (Pt. 1072) 483 at 502. Because of the fundamental nature of the preliminary objection vis-a-vis the jurisdiction of this Court to hear the appeal or to decline jurisdiction and to dispose it in lamine, it is necessary to consider and resolve the preliminary objection raised in the present case first and at the initial stage in order to decide whether or not the appeal is competent and that this Court therefore has the requisite jurisdiction to hear and determine it. The three grounds of the respondent’s preliminary objection as per the notice are as follows:-
” i. the Notice of Appeal herein is invalid.
ii. the lone ground of appeal herein is incompetent.
iii. This Honourable Court of Appeal (sic) lacks the requisite jurisdiction to entertain this appeal.”
In the respondents brief, the arguments or submissions canvassed on the above grounds cover four (4) printed pages but can be summarized in their substance to mean that the lone ground of appeal filed by the appellant does not arise from the judgment of the trial Court. The authorities of SARAKI Vs. KOTOYE (1992) 9 NWLR (Pt. 264) 156 at 184; BANJO Vs. CHADO (1998) 9 NWLR (PT. 564) 139 at 148; OBA Vs. EGBERONBE (1999) 8 NWLR (PT. 615) 485 at 489; and ELUKHAMWEH Vs. ILUOBE (2002) 2 NWLR (PT.750) 163 are cited in the respondents brief on the principle that a ground of appeal which is not based or related to the ratio of the decision or judgment of the trial Court or does not constitute a genuine complaint against it, is incompetent. Thus without a valid or competent ground of appeal as a condition precedent, it is argued by the respondent that this Court will not have jurisdiction to entertain the present appeal based on the lone ground which is invalid or incompetent -See MADUKOLU Vs. NKEMDILIM (supra) A.P. P Vs. OGUNSOLA (2002) 5 NWLR (PT. 761) 484 at 501; and MACFOY Vs. UAC (1962) AC (PT. 152) 160 cited in support of the objection.
The appellant did not file a reply brief in answer to the preliminary objection and to the above submission on it by the respondent. Under order 17 rules 10 of the Court of Appeal Rules. 2007, an appellant who fails to file a reply brief when he should do so, as in the present case, is deemed to have conceded to all the new points or issues arising from or canvassed in the respondents brief. The appellant should have filed a reply to counter or debunk the preliminary objection raised by the respondent but he failed to do so. Despite this, I will however consider the preliminary objection in the present case on its merit and see whether or not it is genuine. This is because the appellant’s counsel at the hearing of this appeal proffered an oral reply with the leave or permission of this Court where he urged the Court to discountenance or overrules the objection, which he said was without merit. Another reason for my consideration of the merit of the preliminary objection is because it raises the fundamental issue of jurisdiction of this Court which issue ‘every Court is required to guard jealously and with certainty. Thus I cannot rely solely on the respondent’s submission and deem it to be correct thereby declining jurisdiction without analyzing and comparing the said submissions and ensuring that they are supported by the record.
In resolving the preliminary objection and in line with my above formula, it is necessary to reproduce the lone ground of appeal complained against in the objection and compare it with the ratio of the ruling of the trial court dated 9/10/06, which is the subject of the present appeal. The lone ground of appeal can be reproduced (without its particulars) from page 21 of the record of appeal as follows:-
“that the learned trial judge misconstrued section 114(1) of the Matrimonial Causes Act 1970 in holding that the RELIEF OF MAINTAINANCE does not come under the preview (sic) of Matrimonial Causes and the suit therefore can be commenced By WRIT OF SUMMONS under the Lagos State High Court Rules, 2004 as against the Matrimonial Causes Rules, 1983; in that (a) ………
(b) …………..
(c) …………..
(d) …………..
(e) …………..
In the conclusion of the one (1) page ruling of the trial Court (at page 19 of the record), the learned trial judge held as follows:-
“the 1st claimant herein is not seeking a dissolution of her marriage or any of the reliefs in section 114(1) (a) or (b). What she and her children seek is an order for maintenance, which they cannot file under the Matrimonial Causes Act since they do not have concurrent, pending or completed proceedings under that act.
The constitution as well as the child Rights Act allows (sic) the claimant to come before this court to seek the relief’s they seek. It is not a Matrimonial Causes in section 114 of the Matrimonial Causes Act. They are properly before this Court. The preliminary objection therefore fails and is hereby dismissed.”
When the above ratio is compared with the lone ground of appeal filed by the appellant, it is easy to see that they are both bordered on the propriety or otherwise of filing the present action via a writ of summons instead of filling or commencing it under the Matrimonial Causes Act 1970 (section 114(1) (a) or (b) thereof). In other words both the ruling and the lone ground of appeal relate to the same question of whether or not an action by a wife and children against the husband (or father) for maintenance is required to be commenced under the Matrimonial Causes Act 1970 Or the Rules made there under in 1983, or whether such an action can be commenced in the regular manner under the High Court of Lagos State (Civil Procedure) Rules 2004 by means of filing a writ of summon and a statement of claim? In view of the similarity or correlation between the issue or question raised in the lone ground and the ruling of the lower Court (both reproduced above), it cannot be said that the said ground does not arise or is not related to the ratio or ruling of the lower Court dated 9/10/06. This assertion of the respondents, which is the basis of their preliminary objection, does not therefore represent the true position as borne by the record. Consequently, it is a mere misrepresentation and a misconception on the part of the respondents learned counsel Mrs. Syliva Shinaba who canvassed it in the preliminary objection. This Court will not uphold such a shallow and misconceived objection. It is accordingly hereby overruled.
I now proceed to consider the submissions of the parties under the lone issue for consideration (reproduced above) as formulated in the appellants brief.
The main thrust of the appellant’s submission under the lone issue is that the suit instituted by the respondent by way of filing a writ of summons and an endorsed statement of claim under the High Court of Lagos State (Civil Procedure) Rules 2004 was not properly constituted. It is submitted that the action of the respondent (as the wife and children of the appellant) for maintenance, education and welfare can only be instituted or commenced in the manner prescribed under the Matrimonial Causes Act 1970 and the Matrimonial Causes Rules .1983. Reference is made in the brief to section 114 (1) of the Act (supra), which defines the term “matrimonial causes” and provides in paragraph (1) as follows:
” (c) Proceedings with respect to the maintenance of a party to the proceedings, and Education and welfare of children … being proceedings in relation to concurrent, pending or completed proceedings of a kind referred to in paragraphs (a) or (b) of this subsection.”
It is argued that by virtue of the above provision in which the ancillary relief’s of maintenance, education and welfare are aligned or related to the principal relief’s in subsections (or paragraphs (a) and (b) the ancillary relief’s cannot stand by themselves and can only brought after or during the pendency of the principal relief of dissolution of marriage, nullity, or judicial separation as in paragraphs (a) and (b) of the section. The ruling of the learned trial judge, which says otherwise and held that the respondents claim for maintenance, education and welfare can be brought as independent claim even in the absence of any petition for the principal reliefs is said to be in error and should be reversed by this court. – See HAYES Vs. HAYES (2000) 3 NWLR (Pt. 648, 276 at 294 cited in support of the appellant submission. It is contended that since the respondent’s action is not properly constituted or brought by due process the trial Court has no jurisdiction to hear and determine it -See MADUKOLU Vs. NKEMDILIM (supra) cited in support of the submission. The appellant finally urges this Court to hold so and to reverse the ruling of the lower Court by upholding his preliminary objection before it. In the respondents brief and in reply to the above submissions of the appellant, it is conceded that under the provision of both the Matrimonial Causes Act, 1970 (section 114) and the Matrimonial Causes Rules 1983 (order xiv thereof) the use of a writ of summons in commencing a proceedings for both the principal reliefs of dissolution, nullity of marriage as well as the ancillary reliefs of maintenance, education and welfare of children is limited and the proper way to commence such proceedings is by way of petition as prescribed under the above Act and the rules (supra). It is however argued that the present action by the respondents before the trial Court is not one of such proceedings, as they are not seeking for any of the principal reliefs against the appellant whom they are suing for breaching his duty, under the Law, of maintaining his wife and children. It is contended that the Matrimonial Causes Act or rules do not expressly provide that such action must be commenced by a petition to the exclusion of a writ of summons. It is pointed out that the 1st respondent in the suit before the lower court is not seeking for a divorce or a dissolution of her marriage with the appellant which is still subsisting but is only suing him for maintenance, education and welfare of the children of the marriage. Thus such action can be commenced by the normal and regular method via a writ of summons as recommended by the Lagos State High Court (Civil Procedure) Rules 2004 (orders 2 and 3 thereof) and the child Rights Act (C RA) 2003 (section 14 thereof). The maxim “ubi jus ibi remedium” and the cases decided on it BELLO Vs. AG. OYO STATE (1986) 5 NWLR (Pt. 45) 828 at 878; and NWANKWO Vs. NWANKWO (1992) 4 NWLR (Pt 238 673 at 710 are cited in support of the above submission. This is followed by an attempt to distinguish the authority of HAYES Vs. HAYES (supra) cited by the appellant to show that it is not relevant or applicable to the present case in which the reliefs claimed by the respondents at the lower Court are independent and not ancillary to any principal relief for a nullity of marriage or otherwise.
It is also argued that the definition of the word maintenance in Hayes Vs. Hayes (supra) is not exhaustive and should not override the ordinary meaning given to the term in the dictionary -See Webster Dictionary of English Language (international Edition) cited in support. This Court is finally urged by the respondents to dismiss the present appeal and to uphold the ruling of the learned trial judge on the appellant’s preliminary objection before the trial court.
On my consideration of the submission in the two briefs on the lone issue, the first point to note is the concession of the respondent that under the provisions of both the Matrimonial Causes Act and the Matrimonial Causes Rules (supra) the use of a writ of summons to commence proceedings in Matrimonial Causes (for both principal and ancillary relief’s) is limited (or not permitted) and the proper way to commence such proceedings is by a petition as prescribed by or in the said rules. By this concession, it is therefore not in dispute that the present action by the respondents at the lower Court which was commenced by a writ of summon in which they are seeking for the relief’s of maintenance, education and welfare which are similar to those mentioned in the definition section of the Matrimonial Causes Act 1970 (i.e. section 114(1)(c) and the Rules of procedure made there under in 1983 (order xiv thereof) was not properly commenced or was contrary to or in breach of the said rules. The respondents however, assert that their present action before the lower Court was not brought under or pursuant to the Matrimonial Causes Act and was therefore an independent and normal claim of their right to maintenance (as a wife) education and welfare (as children of the marriage) which was properly brought or commenced by the issuance of a writ of summons as prescribed under order 3 of the High Court Civil Procedure Rules 2004. In resolving this contention of the respondents, it is pertinent to reproduce the main provision of order 3 rule (1) of the High Court of Lagos State (Civil Procedure) Rules 2004 which provides as follows:-
“Subject to the. provision of these rules or any other applicable Law requiring any proceeding to be begun otherwise than by writ,” a writ of summons shall be the form of commencing all proceedings: where a claimant claims:
(i) any relief or remedy for any civil wrong; or
(ii) …………..
(iii) ………… (Underlining is for emphasis).
From the express words in the underlined part of the above rule it is clear that the use of the writ of summon in commencing civil proceedings in the High Court of Lagos State is only allowed or permitted subject inter-alia to any other applicable Law. Thus where any other applicable law provides for the use of any other process instead of the writ in commencing a proceeding before the High Court, such should be complied with. Failure to comply with the rules as to the commencement of action is fatal to the plaintiff’s case and should be sanctioned by the court, which will strike out such a defective or incompetent process.
It is an inherent jurisdiction and duty of the Court to ensure compliance with the relevant rules of Court, which are required to be prima facie obeyed. In the instant case from the earlier reproduced provision of the Matrimonial Causes Act and the rules made there under, it is the clear intention of the framers of the two legislations (i.e. the principal and subsidiary legislation) that the relief’s of maintenance, of a wife (or family) as well education and welfare of the children of the marriage cannot stand by themselves or are not independent but must be incidental or ancillary to the main relief claimed for dissolution of marriage, nullity, judicial separation or restitution of conjugal rights or jactitation of marriage (as rightly listed in the briefs of the parties). It is also trite that all reliefs claimable under the Matrimonial Causes Act or rules are to be by way of a petition rather than a writ of summon -see HAYES Vs. HAYES (supra, cited in the two briefs); UBN LTD Vs. ODESOTE BOOKSTORES LTD (1995) 9 NWLR (Pt. 421) 558; ONIFADE Vs. OLAYIWOLA (1990) 7 NWLR (Pt.161) 130; HAYMAN Vs. HYMAN (supra, cited by the respondent); GANDY Vs. GANDY 30 CH. D. 57; FGN Vs. ZEBRA ENERGY LTD (2002) 18 NWLR (Pt.798) 162; OLIVER Vs. OLIVER (1967) 9 FLR 469; ALABI Vs. ALABI (2008) ALL FWLR (Pt. 418) 245 at 281; ANYANSO Vs. ANYANSO (1998) 9 NWLR (Pt. 564) 150. Proceedings under the Matrimonial Causes Act are regarded as special class of action, which are required to be instituted on commenced by way of a petition (see section 54(1) of the Act supra). Under subsection (3) of the said section of the Act such proceedings shall not be instituted in any other manner except with the leave of Court.
From my above analysis of the provision of the High Court of Lagos State (Civil Procedure) Rules 2004 and the Matrimonial Causes Act 1970 (and the rules made there under in 1983) It is clear that the interpretation given to the term “Matrimonial Causes” in the relevant provision of the two sets of procedural rules on the commencement of action in the present case in both the respondents brief and in the ruling of the lower court are both shallow and untenable.
In my humble view the present suit or action by a wife against her husband for her maintenance and the welfare and education of the children of the marriage can only be commenced or instituted under the Matrimonial Causes Act and should be ancillary or incidental to a pending or concluded main relief as adumbrated above. Thus such ancillary reliefs as sought by the respondents cannot or should not be brought independently or in a regular way (i.e. by writ of summons) when the marriage is still subsisting between the spouses. The aim and purport of this prohibition is in the need to preserve the sanctity of the marriage institution and to avoid its possible breakdown or cause any disaffection between or amongst the members of the family during the subsistence of the marriage. This is also the reason why the Courts are reluctant even to grant the main relief unless it is proved that the marriage (i.e. the sanctified union between a man and a woman for life and to the exclusion of all others) has broken down irretrievably. Thus where the marriage can be retrieved the parties (or the couple) are always encouraged to settle the matter and resume their conjugal relationship.
It is also a common knowledge that in Nigeria, the duty or responsibility of maintenance, education and welfare of children even though are the primary responsibility of the husband they are or can sometimes be carried out or performed by the wife depending on the individual wealth, or means of one or the other of the couple. The child Right Act (C R A) 2003 (section 14 thereof) cited and relied upon by the respondents is not properly cited in their brief, as they have not pinpointed any of the provisions of the said Act regulating the procedure or venue for the commencement of a maintenance action. It has also not been shown by the respondents that the Act has been ratified, or absolved in our local or municipal law as has been done in the case of African Charter on Human and Peoples Rights which has been ratified and absolved in our municipal Law by the Ratification and Enforcement Act (cap 10) LFN 1990. In any case, the respondent failed to give the full citation or particulars of the statute. It is the duty of counsel who cite statutes or legislations to give full particular of them for easy reference by the Court. In the present case the respondents learned counsel did not do so even in the list of authorities wherein the reference is simply made to the legislation as the Child Rights Act, 2003.
I agree with the appellant’s analogy of the present action or suit to an action brought under the Companies and Allied Matters Act (CAMA) or an admiralty action, which are to be brought or commenced in the federal High Court and under a different procedure (i.e. by way of petition) or an originating process instead of by a writ of summons.
Even under the Rules of the supreme Court of England (as in the White Book) which was hitherto applicable in our High Court, it is expressly provided in order 1 rule 2(1) that the rules (of procedure) apply to all proceedings except the following proceedings which are governed by other provisions: –
“(1) bankruptcy reply proceedings;
(2) proceedings relating to the winding up of companies;
(3) non contentions or probate proceedings;
(4) …………………………………..
(5) . …………………………………..
(6) matrimonial proceedings; and
(7) criminal proceedings. (under lining supplied) –
see “Civil Procedure and Evidence” by P. ST. J Langan (1990 Edition) pages 14 -16.
In Nigerian and under our adjectival Law, where a statute or rule of practice provides that certain proceedings in respect of a particular cause of actions shall be commenced by one method or process an action or suit by a litigant who initiates it by means of another method or process will be regarded as irregular or incompetent with the result that such a non compliance as in the present case will deprive the court of its jurisdiction to entertain the action or suit as initiated. This is because for the Court to have or exercise jurisdiction, one of the conditions precedent is that the action must be brought by a due process and that the subject matter of the case is within the jurisdiction of the court -see MADUKOLU Vs. NKEMDULIM (supra); TUKUR VS. GOVT. OF GONGOLA STATE (1989) 4 NWLR (PT. 117) 517; OGUDU VS. STATE (1994) 9 NWLR
(Pt. 366) 1 at 48 -49; A. G. LAGOS STATE Vs. HON. JUSTICE DOSUNMU (1989) 3 NWLR (Pt. 111) 552 at 566 -567.
It is trite that where a court lacks the required jurisdiction or competence to adjudicate in a matter and it wrongly assumed the jurisdiction as in the present case. Its decision as well as the whole proceedings are or amount to a nullity however well conducted they might have been -see MADUKOLU Vs. NKEMDILIM (supra), AWOSIKE Vs. IGBEKE (1999) 8 NWLR (Pt. 616) 686; WESTERN STEEL WORKS LTD Vs. IRON & STEEL WORKERS UNION (1986) 3 NWLR (Pt. 30) 617; and AG LAGOS STATE Vs. DOSUNMU (supra).
On my above consideration of the lone issue in this appeal, the said issue as framed in the appellants brief must be answered in the negative and resolved in favour of the said appellant. Consequently his appeal is meritorious and has succeeded. It is hereby allowed by me. The ruling of the lower Court dated 9/10/06 is hereby set aside and the action of the respondents before the said Lower Court, which was not properly constituted, is hereby struck out. Because of the subsisting marriage and the parental relationship between the parties who are still husband, wife and children, I make no order as to costs.
PAUL ADAMU GALINJE, JCA: I read in advance the judgment just delivered by my learned brother Adamu, JCA, OFR, and I agree that the action of the Respondent before the lower Court was not properly constituted.
Accordingly same is struck out by me.
I make no order as to cost.
Other Citations: (2008)LCN/2893(CA)
