Anthony Chinwuba Ani V. Odunayo Boyepe Ani (2002)
LawGlobal-Hub Lead Judgment Report
BULKACHUWA J.C.A.
The appellant, as the petitioner, had taken out a petition before the High Court of the Federal Capital Territory, Abuja, on the 2/12/99, against the respondent whereby, he petitioned for the following reliefs;
- That the purported marriage between him and the respondent be declared a nullity on the ground that the marriage is void.
- That the petitioner be granted custody of the children of the purported marriage.
- That the respondent be ordered to pay the cost of the suit.
The petitioner also sought and was granted an order ex-parte by the trial court on the 3/12/99, for service out of jurisdiction on the respondent through DHL courier or any other reputable courier company.
Before commencement of trial however, the respondent filed a motion on notice on the 29/2/2000, praying for an order striking out the suit as the same constitute an abuse of court process. The grounds for bringing the application, being that there is a pending case No. ID/19OWD/98 before High Court No.9 Ikeja, Lagos, between the same parties in which the respondent is the petitioner on the same subject-matter i.e the marriage of the parties.
The application was moved on the 21/3/2000 and a ruling delivered on 10/4/2000, whereby the trial court struck out the petition for being an abuse of the court process.
The petitioner being dissatisfied with the order striking out the petition has now appealed to this court on 4 grounds of appeal which are listed below;
GROUNDS OF APPEAL: GROUND 1
The learned trial Judge erred in law, when he held that the appellant’s petition for decree of nullity of marriage pending at Abuja High Court, can conveniently be taken together before Ikeja High Court, where the respondent filed a petition for the dissolution of the same marriage, among other reliefs.
Particulars of Error
a) At the Ikeja High Court, the appellant filed an application challenging the jurisdiction of the court on the ground that the respondent did not comply with the provision of the Sheriff and Civil Process Act in serving the process.
b) The ruling on the appellant application that the petition at Ikeja High Court, be struck out is still being awaited and has not been delivered till date.
c) If the appellant files a cross-petition at Ikeja High Court for nullity of the marriage, he will in law, be deemed to have waived his right as that would amount to taking steps in the proceedings.
GROUND 2:
The learned trial Judge erred in law, when he held that the appellant’s petition for nullity of marriage amounts to duplication of action.
Particulars of Error:
a) The parties are not the same, and the reliefs are not the same in the petition for dissolution of marriage and nullity of the same marriage.
b) The respondent herein in suit No. ID/19OWD/98 asked for dissolution of marriage, settlement of property, N5,000,000.00 each from the appellant, and the party cited, account, injunction etc.
c) The petition of the appellant in suit No, FCT/HC/CV/801/99 is only for nullity of the purported marriage and the custody of the two children.
d) The party cited in the petition for dissolution of the marriage is not a party in the petition for nullity of the same marriage.
GROUND 3
The learned trial Judge erred in law, when he failed to advert his mind to the mandatory section 29 of the Matrimonial Causes Act, Cap. 220, Laws of the Federation 1990, despite references to same by counsel to the appellant.
Particulars of Error:
a) Under section 29 of the Matrimonial Causes Act where a petition for dissolution of marriage and petition for nullity of the same marriage is pending before a court, the court shall not make a decree dissolving the marriage, unless it has dismissed the petition for nullity of the marriage.
b) By virtue of S. 2 (1) and (2) of the Matrimonial Causes Act the court (i.e. Abuja High Court) has jurisdiction to entertain the petition and therefore, is a court contemplated in section 29 of the MCA.
c) This section was not considered anywhere in the ruling of the learned trial Judge.
GROUND 4
The learned trial Judge erred in law, when he held that the petition for nullity of marriage at Abuja High Court amount to improperly using the judicial process to the annoyance of the respondent.
Particulars of Error:
a) The petition for nullity of marriage is not premised on frivolity or recklessness, it is one of the reliefs recognised by law.
b) The issue raised in the petition for nullity of marriage cannot be conveniently canvassed in the respondent’s petition for dissolution of marriage.
From the above grounds of appeal the appellant has formulated 2 issues for our determination to wit;
- Whether the petition for nullity of marriage constitute an abuse of the courts process.
- Whether the issues raised in the petition for nullity of marriage can conveniently be taken together with the petition for dissolution of the same marriage.
The respondent similarly formulated two issues. They are produced below;
1) Whether the appellant’s petition for dissolution of marriage filed in Abuja High Court, can be conveniently taken together with the respondent petition for dissolution of the same marriage filed at High Court of Justice Lagos.
2) Whether the petition for nullity of marriage filed in the High Court of Abuja, at a later date after the filing of the petition for dissolution of marriage in Lagos does not amount to an abuse of court process.
The two sets of issues are not dissimilar and the determination of one set will be the same as determining the other set, this appeal will therefore, be determined on the set of issues as formulated by the appellant.
I, however, find it more appropriate to start with issue 2 which asks whether the issues raised in the petition for nullity of marriage can conveniently be taken together with the petition for dissolution of the same marriage.
On this issue the appellant made two submissions, one on S.29 of the Matrimonial Causes Act, and the other on what transpired before the Ikeja High Court, where the petition for dissolution of marriage was filed by the respondent. I am mindful of the fact that it is always the duty of an appellate court to consider all arguments on issues raised before it for failure to pronounce on an issue properly raised before a court may amount to lack of hearing and result in miscarriage of justice – Union Bank of Nigeria and Another v. Benjanmin Nwaokolo (1995) 6 NWLR (Pt.400) 127; (1995) 4 SCNJ 93 Leedo Presidential Motel Ltd v. Bank of the North Limited and anor. (1998) 10 NWLR (Pt.570) 353, (1998) 7 SCNJ 328.
However, issues for determination and arguments thereon to be competent must attack the judgment and in this instance the ruling of the court from which the appeal lies and not attack the proceedings of another court- Chief Oyelakin Balogun v. Moses Olayioye Adedosu Adejobi and Anor (1995) 2 NWLR (Pt.376) 131, (1995) 1 SCNJ 242; Sunday Adisa Oduntan v. General Oil Limited (1995) 4 NWLR (Pt.387) 1, (1995) 4 SCNJ 145. The second arm of the argument on this issue is attacking the proceedings before the Ikeja High Court, I deem it incompetent to the present appeal and hereby strike it out.
The argument of learned Counsel for the appellant on the second issue, is hinged mainly on S.29 of the Matrimonial Causes Act and S.2(1)(2) thereof by which he is contending that by virtue of the said Act the High Court of the Federal Capital Territory, Abuja, has jurisdiction to hear and determine matrimonial causes instituted under the Act. Pointing out further that by virtue of S.29 MCA proceedings for nullity of marriage should take precedence over proceedings for dissolution of marriage or even act as a stay of the proceedings for dissolution of marriage. Submitting that he had addressed the trial court, but the court made no reference to it in its ruling. That failure to consider address of counsel will occasion a miscarriage of justice and liable to have the decision set aside on appeal side – Costain (WA) Ltd v. Kotun (1998) 10 NWLR (Pt.568) 84, and urged us to allow the appeal.
Section 2(2)(b)(c) of the Matrimonial Causes Act provides:
” …a person may institute a matrimonial cause under this Act in the High Court of any State of the Federation… to hear and determine proceedings for a decree-(a) of a nullity of a avoidable marriage (b) of nullity of a void marriage.”
Similarly S.257(1) of the 1999 Constitution of the Federation, confers original jurisdiction on the High Court of the Federal Capital Territory “to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty liability, privilege, interest, obligation or claim is in issue…”
By these two provisions the High Court of the Federal Capital Territory, Abuja, will therefore have jurisdiction to hear and determine any matrimonial cause or matter.
In the instant case, this is not contentious. What is contentious is whether a respondent to a petition for dissolution of a marriage before a court, can institute a petition for the nullification of the same marriage in another court, with concurrent jurisdiction in which the first petition is filed?
S. 29 of the Matrimonial Causes Act provides;
“Where both a petition for a decree of nullity of a marriage and a petition for a decree of dissolution of that marriage are before a court, the court shall not make a decree of dissolution of the marriage unless it has dismissed the petition for a decree of nullity of the marriage.”
From my understanding of the above provision, the contemplation of the law maker is that a decree of nullity of marriage and a decree for dissolution of the same marriage, may both be filed in a court at the same time and when that happens the court has to first consider the petition for decree of nullity of the marriage and dismiss same before it can consider the decree for the dissolution of the marriage.
Reference is made to ‘a court’ and ‘the court’ in the provision, the two references all being singular references. The law maker was therefore, only contemplating one court and not two or more courts. The two petitions can thus, be filed and determined in one court.
If the law allows the two petitions to be filed in the same court, then the need to file them in two different courts will not arise, to do so will amount to multiplicity of actions by the same parties on the same subject-matter.
This will lead us to the other issue in this appeal, whether the filing of the petition for nullity of the marriage before the High Court FCT, Abuja, is an abuse of the court process.
The appellant had submitted on the issue that there was no abuse of court process, after referring to the cases of Ishmael Amaefule & Ors v. The State (1988) 4 SC 33, (1988) 2 NWLR (Pt.75) 156; Prof L.O. Nwoboshi & Ors v. The State (1998) 10 NWLR (Pt.568) 131; Alhaji Lasisi Apamadari & Anor. v. The State 1997, 3 NWLR part 493 289 to show that the parties, the issues raised and the reliefs sought in the two petitions are not the same. Nor is there anything in the appellant’s petition for nullity of marriage to show that it is lacking in bona fide or tainted with malice.
The respondent is of the opinion that in the circumstances of this case, the petition filed at the High Court Abuja, is an abuse of the process of the court as the provision under the Matrimonial Causes Act will enable the High Court of Lagos State to adjudicate on the matter.
Karibi-Whyte JSC had in Okafor v. A.-G. of Anambra State (1991) 6 NWLR Part 200 659 at 681 clearly defined “an abuse of court process” when he stated;
“There is said to be an abuse of the process of the court, when a party improperly uses the issue of the judicial process to the irritation and annoyance of his opponent, such as instituting a multiplicity of actions on the same subject-matter against the same opponent on the same issues. It is not the existence or pendency of a previous suit that causes the problem. Rather, it is the institution of a fresh action between the same parties and on the same subject-matter when the previous suit has not yet been disposed of that constitute abuse of process of court.”
It follows therefore, that instituting other actions simultaneously on the same subject-matter, against the same party on the same issue is an abuse of the process of court – Kotoye v. Saraki (1992) 9 NWLR (Pt.264) 156; Ode v. Balogun (1999) 10 NWLR (Pt. 622) 214.In the instant case, there is a pending suit at the Lagos High court, instituted by the respondent against the appellant for the dissolution of a substantive marriage between them. The petition filed by the appellant before the trial court is for the nullification of the same, subsisting marriage between him and the respondent. No matter from which angle you look at it, there is only one subject matter in these two cases – the marriage of the parties whether void or voidable. Similarly, the respondent and the appellant are still the principal parties in the petition.
To my mind, this case which is filed during the pendency of the case in Lagos, particularly when the law has made provisions for the hearing and determination of the two petitions in the same court, is an abuse of the process of court and the learned trial Judge was right to have held so.
Whether there are other parties cited in the Lagos case, and whether the relief sought in the Lagos case is different from the Abuja case, the outcome of the two cases will still be the determination of the marriage of the two parties.
The learned trial Judge was right in holding that the initiation of the action at Abuja, during the pendency of a similar case in Lagos is an abuse of the court process S.29 of the Matrimonial Causes Act, provides for the filing of the two actions in the same court. I uphold and affirm the ruling of the trial court delivered on the 10/4/2001. I dismiss the appeal and award N10,000.00 to the respondent.
Other Citations: (2002)LCN/1066(CA)
