Augustina Chinyelu Ugo V. Dr. Roy Pedro Ugo (2007)
LawGlobal-Hub Lead Judgment Report
MARY U. PETER-ODILI J.C.A.
This is an appeal against the Ruling of the Honourable Justice Theresa N. Orji-Abadua of the Federal Capital Territory High Court NO.7 sitting at Bwari FCT delivered on Monday 19th June 2006 wherein the learned trial Judge in the ruling on preliminary objection on points of law urging the trial court to strike out the Divorce petition filed and pending in that court by the petitioner/respondent herein dismissed the said preliminary objection.
FACTS STATED BRIEFLY
By a Notice of Petition filed on 1/3/05 together with other relevant documents, the Petitioner/Respondent in this appeal sought a decree for the dissolution of his marriage to the Respondent/Appellant in this Appeal. By an order for substituted service, the Appellant was served in New York USA where she resides and is domiciled with the petitioner and the three children of the marriage, the petitioner as PW1 on 27/7/05 gave and concluded his evidence and was cross examined by the then counsel to the respondent, Ifeanyi Akubuo Esq.
Upon the Appellant/Respondent changing her counsel to Emmanuel C. Okonkwo Esq., a motion on notice was filed on her behalf in the court below challenging by way of preliminary objection, the lack of jurisdiction of the trial high court on points of law viz citizenship, domicile, abuse of process, estoppel and bigamy. After full arguments by both sides the learned trial Judge delivered the Ruling on Monday 19/06/06 on the objection and dismissed it.
The Appellant herein being dissatisfied with the said Ruling has appealed to this court.
NOTICE OF PRELIMINARY OBJECTION:
The Respondent to the Appeal, Dr. Roy Pedro Ugo filed a preliminary objection to the Appeal urging the court to dismiss the appeal filed by the Appellant on the ground that all the grounds of appeal and particulars of errors numbered as 1- V in the Notice of Appeal dated 28/06/06 contain facts or mixed law and facts and the appeal being an interlocutory appeal from the High Court to the Court of Appeal the Appellant is mandated or enjoined by Section 242(1) of the 1999 Constitution of the Federal Republic of Nigeria to seek and obtain the leave of either the High Court or the Court of Appeal before she could argue any ground or grounds of appeal containing facts or mixed law and facts. He cited Union Bank of Nigeria PLC v. Olusoji Segunro & 2 ors (2006) 27 NSCQR 182 Nwadike & ors v. Ibekwe (1987) 4 NWLR (pt. 67) 718 at 721.
Learned counsel for the Respondent/Applicant further stated that a careful examination would reveal that the grounds of appeal and particulars of error, reliefs sought from the Court of Appeal which are hinged on res judicata or estoppels per ram judicatam, Abuse of the Court process, domicile, fraud, bigamy, bias and issues for determination in Appellant’s brief of argument are all questions of fact which the Court of Appeal cannot decide upon without recourse to the pleadings or evidence and proceedings and judgments of previous courts. He cited Oshodi & 2 ors v. Eyifunmi (2000) 3 NSCQR 320. That in the circumstance since no leave was sought for and obtained by the Appellant either in the High Court or the Court of Appeal this appeal is incompetent.
Learned counsel went on to say that grounds I – V as contained in the Notice of Appeal dated 28/06/06 violate order 3 rule 2(2) of the Court of Appeal Rules 2002 in that the particulars of misdirection or errors in law are not stated therein. That all the grounds of appeal in I – V in the Notice of Appeal contain facts based on affidavit and oral evidence in the court below. That there are no questions of law raised therein at all and the fact of calling the misdirection or error in law does not ipso facto make them so. See Metal Construction (WA) Ltd v. Miglore & ors (1990)1 NWLR (pt. 126) 299.
Learned counsel said since no leave was sought for and obtained all the grounds of appeal and therefore the appeal should be dismissed. He referred to Major J.Z. Umoru (rtd) v. Alhaji Abubakar Zibiri & 4 ors (2003) 11 MJSC109 at 116
In response the Appellant contended through counsel that the respondent had overlooked Section 241 (a) and (b) of the 1999 Constitution which provide for appeal as of right by appellants from final decisions of the High Court sitting at first instance as in this appeal and the grounds/issues thereof. That this appeal is a final decision since the decision connotes a resolution of the issues between the parties by the court which becomes functus officio thereafter and neither of the parties can relitigate such issue before that court or indeed any other court saves by way of appeal thereof as in this instance.
Learned counsel stated on that the Appellant’s preliminary objection in the court below hinged outrightly on the jurisdiction or lack of it of the trial court to proceed with the divorce petition and so that decision by the trial high court is final as it disposed of the issues as were brought before that court completely and that court became functus officio thereby as the issues cannot thereafter be relitigated in that court or any other court save by way of appeal as is now being done. He stated further that notwithstanding that the issues were by way of preliminary objection fatal as the proceedings would amount to nothing no matter how well conducted the matter has been done and decided. Also a court is bound without more to put an end to its proceedings once it is manifest that the proceedings are incompetent thus upholding the preliminary objection for lacking in merit.
In brief the contest in this preliminary objection is that the Respondent/Applicant contends that the grounds of appeal being of mixed law and facts leave of court as enshrined in the 1999 Constitution Section 241 ought to have been asked for and obtained by the Appellant.
That this failure rendered the appeal incompetent and robbed this court of the jurisdiction to entertain the appeal.
The Appellant/Respondent rejecting that posture argues that their grounds of appeal are of law and even if not since the appeal is on a final decision of the lower court when it ruled that it had jurisdiction to hear the suit that the requirements of the Constitution Section 241 (1) (2) are met as no leave is necessary since appeal in such a circumstance is of right.
The rules of court must prima facie be obeyed. As such it is the court which can extend indulgence to a party in a case before it to depart from the rules. The courts have an inherent jurisdiction to ensure compliance by litigants with the rules of court and to strike out any process not filed in compliance with the relevant rules. See UBA Ltd v. Odusote Bookstores Ltd (1995) 9 NWLR (pt 421) 558; Onifade v. Olayiwola (1990) 7 NWLR (pt. 161) 130 at 166 – 167.
I have not lost sight of the fact that a right of appeal is a very important constitutional right and its exercise ought not to be unduly fettered. I place reliance on the case of Obikoya v. Wema Bank Ltd (1989) 1 NWLR (pt. 96) 157. In Umoru v. Zibiri (2003) 11 NWLR (pt. 832) 647 Supreme Court.
The fact that a ground of appeal alleges an error of law does not ipso facto make it a ground of law. See Metal Construction (W.A) Ltd v. Miglore (1990) 1 NWLR (pt. 126) 299.
It is true that once no leave was shown to have been obtained by the Appellant before filing the grounds of appeal alleging error of facts based on evidence the said grounds together with the issues distilled therefrom and the arguments proffered thereon are liable to be struck out. See Nwadike v. Ibekwe (1987) 4 NWLR (pt. 67) 718; Ogbechie v. Onochie (1986) 2 NWLR (pt. 23) 484; Ifediorah v. Ume (1988) 2 NWLR (pt. 74) 5.
It is a recognised fact that the line of distinction between law simplicity and mixed law and facts is a very thin one. But an appellant does not convert a ground of mixed law and facts into a ground of law by christening it “error of law” or “misdirection in law”, I refer to Nwadike v. Ibekwe (1987) 4 NWLR (pt. 67) 718 at 729; Ojemen v. Momodu II (1983) 1 SCNLR188 at 211.
In the instant case perusing the grounds of appeal at pages 155-158 of the Record of Proceedings the fact that the Appellant had titled each of those grounds as errors of law do not make them so since in substance what we have therein are clearly grounds of mixed law and facts. Therefore if one is to go by that without more then leave of court for this appeal would be a necessity. However this Preliminary Objection is fought along the other angle of whether or not the order made at the interlocutory stage in the court below is a final order or decision or purely interlocutory either way would change the course of the proceeding as to whether or not leave is required to file the appeal.
An interlocutory application is that application which does not decide the rights of the parties but are made for the purpose of:
(a) Keeping things in status quo till the rights of the parties can be decided;
(b) Obtaining some direction of the court as to how the cause of action is to be conducted;
(e) Determining what is to be done in the progress of the cause of action for the purpose of enabling the court ultimately to decide upon the rights of the parties.
Therefore an order of court is interlocutory when it does not deal with the final rights of the parties. I refer to the case of Omonuwa v. Oshodin (1985) NWLR (pt. 10) 924.
There are two tests laid down for determining whether an order of court is final or interlocutory and these are:-
(1) To see the nature of the application made to the court in order to determine if the order is final or interlocutory.
(2) To consider the nature of the order made.
In Nigeria, it is the “nature – of – order” test that has been constantly applied. That is to say that if the order made finally disposes of the rights of the parties it is regarded as final but if the order made does not, it is interlocutory. Put differently an order is taken as final when it at once affects the status of the parties for whichever side the decision has been given; so that if it is given for the plaintiff, it is conclusive against the defendant and if it is given for the plaintiff, it is conclusive against the defendant and if it is given for the defendant, it is conclusive against the plaintiff. See Omonuwa v. Oshodin (1985) 2 NWLR (pt. 10) 924. Supreme Court.
“The correct test in determining whether a decision is final or interlocutory is to look at the nature of the order made rather than the nature of the proceedings resulting in the order. When viewed in that way it becomes obvious that a decision reached in an interlocutory application may be final if it disposes finally of the rights of the parties having no further reference to that court on the matter in which it has delivered its decision. For instance a decision by a court refusing an application to transfer a case is a final decision since it had finally determined the rights of the parties as to whether or not to transfer the case”. Per Onnoghen JSC in Ogolo v. Ogolo (2006) 25 NSCQR 423 at441.
The nature of the order made will determine whether the order has finally determined the rights of the parties in the proceedings in issue appealed against and not whether the rights of the parties in the substantive action have been fully disposed of.. Iwueke v. I.M.C. (2005) 24 NSCQR219 at 234 – 235
“Having come to the conclusion that the decision of the trial court in issue is a final one as opposed to an interlocutory decision as canvassed by learned counsel for the Applicant, it follows that the Appellant/Respondent did not need the leave of either the trial High Court or the Court of Appeal before appealing against same as it is the law that an appellant appeals as of right against the final decision of a court of first instance.
It is therefore a follow up to say that in such a situation it is of no moment that a ground of appeal against such a final decision is of law, facts or mixed law and facts”. See Iwueke v. I. M. C. (2005) 24 N5CQR 219 at 236 – 237.
In the light of the authorities cited above alongside the issue in controversy I would not hesitate in coming to the conclusion that the order by the learned trial Judge assuming jurisdiction in the Divorce Petition before her is a final decision. I say so because having settled by a final decision on the trial court’s competence and jurisdiction to entertain the Petition before that court neither party nor his privy can relitigate that issue again. See Obasi v. Merchant Co. Ltd (2005) 21 NSCQR 275 at 296.
Having come to the above conclusion I would say that this appeal is competent and the Court of Appeal has jurisdiction to entertain this appeal and there was no necessity for leave to bring the appeal.
Therefore this preliminary objection is dismissed. I would now proceed with the main appeal.
The appellant through learned counsel, M. Okonkwo filed their Brief of Argument dated 12th June 2007 and flied on 15/6/07. Appellant therein raised these four issues for determination which are:-
- Was the trial judge right in law in holding that the petition before the court is not a relitigation of the res in the earlier trial instituted in New York and to which Estoppel applied.
- Was the Petitioner/Respondent in this appeal domiciled and resident in Abuja Nigeria at the time of his filing the petition for divorce at the FCT High Court NO.7 on 1st March 2005.
- Was the learned trial judge right in holding that only a marriage certificate duly issued by a place of marriage or registry can be proof of marriage and that Section 5(a) and 150 of the Evidence Act in effect are inapplicable to presume a bigamous marriage.
- Is the Appellant herein by virtue of the comments of the learned trial judge on the divorce petition before the court at the end of delivery of the ruling on 19/06/06 not in apprehension of a likelihood of bias.
The Respondent through learned counsel, Mr. Mozie filed a Brief of Argument on the 20/7/07 which Brief was dated 19/7/07. Four issues were formulated which are as follows:-
- Whether the appellant has by credible evidence proved that the jurisdiction of the Court has been ousted on the ground of Estoppel per rem judicatam.
- Whether the Appellant has by credible evidence proved that the petitioner/Respondent was not domiciled in Nigeria at the time of filing the petition for dissolution of marriage.
- Whether the appellant had by credible evidence proved the offence of bigamy under the law against the Petitioner/Respondent.
- Whether the appellant had by credible evidence proved that the trial judge was biased and that this might occasion a miscarriage in the suit.
ISSUE NO. 1
In arguing this issue learned counsel for the Appellant referred the court that the Petitioner/Respondent had taken out summons at the Supreme Court of the State of New York – USA for Divorce i.e. dissolution of his marriage contracted in the USA to the Appellant in this appeal. That the reliefs sought of that court are in the main dissolution of the marriage on grounds of abandonment of the Plaintiff/Appellant herein by the Defendant/Respondent in this appeal for a period of more than one year from the date of the action. That at the end of that trial in the USA, on the 30th May 2002 the suit was dismissed in its entirety by the said Supreme Court of the State of New York, USA. The Petitioner/Respondent in this appeal did not appeal against that judgment which judgment as made and unappealed is still binding on the parties to date. That on the 1/3/05 at Abuja FCT High Court No.7, the High Court from which this appeal comes the same Petitioner/Respondent in this appeal took out petition No. FCT/HC/PET/31/2005 for the dissolution of the same marriage to the Appellant herein on the ground that the parties have lived apart for a continuous period of over 3 years immediately preceding this petition.
Learned counsel for the Appellant stated that the main ground of the petition is in pari material with the main ground of the Divorce petition in New York, save for the further conclusions our own enactment, the Matrimonial Causes Act further provide. That the ancillary reliefs contained in the Abuja High court are on all fours with those reliefs in the Divorce petition in New York as they largely deal with the sharing of matrimonial assets and any further orders the respective courts might deem fit to make in the circumstance. He stated that it is not in dispute that the parties are the same; therefore the lower court erred in law in not holding that the petition pending in his court is duplicity of actions on the same subject of Divorce on Dissolution of the same marriage.
Mr. Okonkwo of counsel further stated that the res in an action for Divorce are the divorce petitions itself and not the ground upon which it is brought. He cited the case of Oshodi v. Eyifunmi (2000) 3 NSCQR 320 at 338 – 340.
In response learned counsel for the Petitioner/Respondent stated that the issue of Estoppel per rem judicatam as raised by the Appellant/Respondent is misconceived and lacks merit as the conditions required for Estoppel per rem judicatam to succeed as laid down by the Supreme Court in the cases of Umeano Achiakpa & Ors v. Josiah Nduka & 6 Ors. (2001) 9 MJSC 137 at 153 and Oshodi & 2 Ors. v. Eyifunmi (2003) NSCQR 320 at 338-340, have not been met or proved by the Appellant/Respondent. That the issue raised in the petition for divorce of marriage by the Petitioner/Respondent in the Supreme Court of New York was for abandonment for a period of more than I year. That the Petition before the High Court, Abuja is for a dissolution of marriage on the ground that the parties have lived apart for a continuous period of 3 years preceding the presentation of the Petition.
Learned counsel for the Petitioner/Respondent said the petition was brought pursuant to Section 15(1) (2) (f) of the Matrimonial Causes Act (MCA) 1970. That the Supreme Court of New York never made any pronouncement on the issue of living apart. He referred to Blacks Law Dictionary definition of “living separate and apart” which is different from abandonment. That in abandonment there must be the consent of the Respondent but in the 3 year rule or under Section 15 (1) (2) (f) consent of the Respondent is not required.
Mr. Mozie of counsel stated further that after the Supreme Court ruled on the petition for abandonment on 30th May 2002, there is no evidence adduced by the Appellant/Respondent that conjugal rights were restored between the parties. There is evidence that Petitioner/Respondent continued to reside separately at his apartment at 2690 Valentine Avenue, Apt 2A Bronx New York 10458, USA which he moved into in January 2000 when he left the matrimonial house and resided there until he finally left New York for Nigeria in the year 2003.
Learned counsel went on to say that from the totality of the evidence before the court it is crystal clear that cohabitation ceased between the parties in the year 2000 and this fact grounded or necessitated the action for dissolution of marriage as the parties had lived apart for a continuous period of 3 years preceding the presentation of the petition. Section 15 (3) of the MCA 1970, further defines the meaning of “living apart.”
That from the definition and underlining it is clear that a petitioner is not limited only to one issue or fact as enumerated in subsections (a)-(h) of Section 15 (2) of the MCA 1970. That the petitioner can even bring a petition containing 2 or 3 grounds in Section 15 (2) (a) – (h) in one petition. That this further means that if a petition fails under Section 15 (2) (a), a petitioner can bring another petition under (b) (c) (d) (e) (f) (g) (h) as this is allowed by the MCA 1970. Mr. Mozie, learned counsel for the Petitioner/Respondent stated further that the defence of Estoppel per rem judicatam to succeed the decision relied upon the decision relied upon to support the plea should be valid, subsisting and final. He said there is no decision by the Supreme Court of New York on the issue of the properties of the parties and so there cannot be a subsisting decision on those issues of the properties of the parties and so the Supreme Court’s decision cannot be taken as final on those issues or as binding decisions on the parties. The Petition for Decree of Dissolution of Marriage before the High court of the Federal Capital Territory in the Abuja Judicial Division Holden At Abuja is stated with the relevant particulars hereunder:-
PETITION FOR DECREE OF DISSOLUTION OF MARRIAGE
TO: The above named High Court.
The Petitioner DR. ROY PEDRO UGO whose address is 11 Ganges Street, Maitama Abuja, and who is a Civil Servant petitions the court for a decree of dissolution of the marriage against the Respondent – AUGUSTINA CHINYELU UGO whose address is at 2023 Laconia Avenue (3rd Floor) Bronx, NY 10469 USA and whose occupation is Nursing at an unknown income upon the ground that the marriage has broken down irretrievably, in that the parties have lived apart for a continuous period of over 3 years immediately preceding the presentation of this petition……….”.
“PREVIOUS PROCEEDINGS
The following are particulars of previous proceedings between the Petitioner and the Respondent since the marriage:-
Action for a divorce filed by Petitioner against Respondent at the Supreme Court of the State of New York, County of Bronx dated March 5th, 2001 on the grounds of (a) Irreconcilable differences between the parties;
(b) Abandonment of the Petitioner by the Respondent for over 1 year. No order was made but reconciliation was encouraged. Since then the parties have not cohabited.
The Petitioner seeks the following orders:-
(a) A decree of dissolution of marriage on the ground that the parties have lived apart for a continuous period of over 3 years immediately preceding this petition and that since the marriage the Respondent has behaved in such a way that the Petitioner could not be reasonably expected to live with the respondent and therefore the marriage has broken down irretrievably”. The other reliefs had to do with the sharing of the joint properties of the parties.
The Respondent, Mrs. Augustina Chinyelu Ugo in answer to the Petition disputed the averments in the petition and stated that their marriage had not broken down and that the Petitioner was misguided by one Miss Daniella and opposed all the orders sought for by the Petitioner urging the court to dismiss the Petition.
On the 27th February 2006 the Respondent filed a MOTION ON NOTICE asking the High Court to strike out this petition on the following grounds:-
- That this honourable court lacks jurisdiction to entertain and determine this suit in that both parties to the suit after 1999 have renounced their Nigerian citizenship and acquired the citizenship of the United States of America and had gotten married under American law in America.
(2) This petition is an abuse of process in that a valid divorce petition was filed and argued to its conclusion in New York by the present petitioner against the present respondent/applicant and a decision reached by that court dismissing the petition and which said decision has not been appealed against to date by this petition herein who lost the petition – further this petitioner later in time had also filed a divorce petition before the Upper Area Court Karu wherein by fraud, he had obtained a divorce against the respondent which divorce was later annulled by the said Upper Area Court Bwari upon the particulars of the fraud being made known to it.
(3) The petitioner has since married one Miss Daniela Ugo as wife whilst still married under the Act to the Respondent/Applicant, a crime of Bigamy by operation of law in Nigerian. This Honourable court cannot be brought to ridicule and illegality by entertaining this petition in abetment of a crime and in disregard of the law it is sworn to uphold”,
Relevant documents in proof of the averments in motion paper and affidavit were exhibited one of which reads:-
“SUPREME COURT OF THE STATE OF NEW YORK COUNTRY OF BRONX, ROYUGO
AGAINST AUGUSTINA UGO………….
…………………..
The following papers number 1 to …………
Read on this motion: Noticed and duly submitted …………..
Notice of motion – Order to show cause – Exhibits and Affidavits Annexed.
Answering Affidavits and Exhibits.
Replying Affidavit and Exhibits.
Affidavits and Exhibits
Pleadings – Exhibit
Stipulation(s) Referees Report Minutes.
Filed papers.
Memoranda of law.
Upon the foregoing and after a trial being held in this matter on May 30, 2002, this National proceeding is hereby dismissed in its entirely. The Court finds that the plaintiff, Roy Ugo failed to establish a cause of action for abandonment pursuant to D. R. L. Section 170(2) as alleged in his Amended verified complaint sworn to on March 7, 2002 and entered with the Bronx Country Clerk’s office on March 18, 2002.
This shall constitute the decision and order of the Court.
Dated 2, 15, 06
Hon. Lataw MARTHI JSC”
It is this motion challenging the jurisdiction of the trial High Court which motion was dismissed by the learned trial Judge that is the basis of this appeal.
In respect of the judgment in the American Court the petitioner did not appeal the dismissal of his petition or the fact that the court did not make any pronouncement on the ancillary reliefs concerning properties.
He came to Nigeria and first went to an Upper Area Court in Abuja obtained a dissolution of the marriage but later came to the High Court which is the trial court from which this appeal on the interlocutory application by the Respondent/Appellant emanates citing Estoppel since the subject matter being the dissolution of the marriage had been adjudicated upon in a court of competent jurisdiction between the same parties and the reliefs similar. I would first refer to the case of Oshodi & 2 ors v. Eyifunmi (2000) 3 NSCQR 320 at 338 – 340, 339 wherein Iguh JSC had proffered five conditions which must be present for the plea of Estoppel per rem judicatam to succeed. These are:-
- That the parties or their privies are the same that is to say that the parties involved in both the previous and the present proceedings are the same.
- That the claims or the issues in dispute in both the previous and present actions are the same.
- The res, that is to say the subject matter of the litigation in the two cases is the same.
- The decision relied upon to support the plea of Estoppel per rem judicatam must be valid subsisting and final.
- The court that gave the previous decision relied upon to sustain the plea must be a court of competent jurisdiction.
From the facts clearly evident in the Record of proceedings all five conditions are existing. The point which the Petitioner/Respondent is hanging on to attempt a departure from the Estoppel doctrine is that in the New York case he had cited 1 year abandonment as ground for seeking the dissolution which was in 2001, while in the High Court Abuja Nigeria it was stated that the dissolution of the same marriage was for living apart of 3 years which action was taken out in 2005 and that 1 year or 3 years are different and the ground for the relief different and so the two suits cannot be caught by Res judicata.
From available records the position of the Petitioner/Respondent is akin to that of a bird without wings. A good attempt no doubt but it just cannot fly. The judgment in the New York court was a final judgment which decided the rights of the patties with the necessary evidence including the documentary properly canvassed. As can now be seen the Petitioner/Respondent is dissatisfied with that judgment but he did nothing at the appropriate forum on appeal and it is not just possible to relitigate by this fresh action in the Abuja High Court. See Obasi v. Merchant Co. Ltd (2005) 21 NSCQR 275 at 296.
The Petitioner/Respondent lost his chance which he cannot pick at his convenience on this international shopping spree from a court suitable to him. The doctrine of estoppel per rem judicatam applies clearly in this instance and the learned trial Judge ought to have applied it and sustained the preliminary objection before her. On that basis alone this appeal is allowed and there is really no point going into any of the other issues since Issue No 1 has settled the appeal.
The appeal is therefore allowed, decision of the trial High Court set aside in that, that court lacked the necessary jurisdiction to adjudicate in this suit which Petition is hereby dismissed.
I order N20,000 costs to the Appellant to be paid by the Petitioner/Respondent.
Other Citations: (2007)LCN/2513(CA)
