Chief Hope Harriman V. Mrs. Irene Harriman (1989)
LawGlobal-Hub Lead Judgment Report
OMO, J.C.A.
This is an appeal against the ruling of Akhigbe, J., sitting in the High Court of Bendel State, Warri Division, granting the application of the respondent for a stay of proceedings in the Divorce petition filed by the Petitioner in that Court-Suit No.W/128/86, pending determination of an appeal pending in the Court of Appeal Lagos between the Petitioner and the respondent- Appeal No. CA/L/236/85 – against a decision of the High Court, Lagos in a matrimonial cause between the parties – Suit No.HD/58/83.
The relevant background facts for a proper consideration of this appeal may be stated as follows: On the 26/5/86 the appellant filed a divorce petition against the respondent in the High Court of Lagos State, Lagos Judicial Division – Suit No. HD/58/83, for a dissolution of their marriage contracted in July 1962 in Lagos.
After the case was set down for hearing and adjourned, the respondent applied for further and better particulars, which said application was dismissed by the Court. Leave to appeal against this dismissal was granted but the respondent failed to prosecute her appeal within time. Her consequent application for enlargement of time within which to prosecute same was dismissed by the Court of Appeal on 23/6/86.
On the same day, and after the court’s decision, the appellant filed a notice of withdrawal of his petition. On the 30/6/86, when the matter came up in court, the learned trial Judge struck out the petition despite the objection of respondent’s counsel as to “the mode of withdrawal.” Application was also made by respondent’s counsel for adjournment to enable respondent’s application to declare the notice of withdrawal void be properly brought before the court.
On 7/7/86 the respondent filed an appeal against the High Court decision of 30/6/86. This appeal has as yet not been determined.
Four days later, on 11/7/86, a fresh petition for dissolution of marriage between the parties was filed in the High Court at Warri. The respondent then filed an application in that Court praying that the new petition – Suit No. W/128/86 – be dismissed or alternatively for an order staying further proceedings therein until Appeal No.CA/L/236/85 aforementioned be determined.
On 10/11/86, Akhigbe, J., granted the alternative prayer mainly on the ground that:
(a) an appeal is pending at the Court of Appeal from a decision of the High Court of Lagos State challenging the striking out of the petition before that court; and so
(b) a matrimonial cause is pending in another court between the parties; and
(c) the subject-matter in both proceedings is the same, to wit, the dissolution of the marriage between the appellant and the respondent.
It is against this order that the appellant has now appealed to this court. Briefs were promptly filed by the parties, after which the appeal, being interlocutory and on a matrimonial cause, was taken out of its turn and listed for hearing. At the hearing counsel relied on their briefs and also addressed the Court in amplification of same.
Five grounds of appeal were filed in support of this appeal as follows:
“(1) The learned trial Judge erred in law when he failed to demonstrate in full a dispassionate consideration of the issues of law properly raised before him by failing to consider the nature of the appeal which formed the basis of the application for stay of proceedings which by law he was bound to do and thereby came to a wrong decision in the case.
(2) The learned trial Judge erred in law by failing to consider which party would suffer greater hardship by his grant or refusal of the order contrary to the decision in Kigo (Nigeria) Ltd. vs. Holman Brothers (Nigeria) Ltd. (1980) 5 -7 S.C. 60.
(3) The learned trial Judge erred in law by his failure to determine whether or not the res in the instant petition was the same as that in the abandoned petition.
PARTICULARS
The ground relied on in the instant Petition is that the parties to the marriage have lived apart for a continuous period of at least three years immediately preceding the presentation of the Petition whereas the ground relied on in the abandoned Petition was that since the marriage the Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with the Respondent and the substratum is not the same.
(4) The learned trial Judge erred in law by his failure to resolve the conflicting Affidavits before him as laid down in Falobi vs. Falobi (1976) 1 N.M.L.R. 169 and thereby came to a wrong decision in the case.
(5) The learned trial Judge erred in law in making an Order of stay of the proceedings when no matrimonial cause was pending between the parties at the time of commencement of the proceedings in the instant case and thereby came to a wrong decision in the matter.”
From these grounds, four issues for determination are set out as arising by the appellant in his brief thus:
“1. Whether or not the learned trial Judge was bound to consider the issue of law properly raised before him in exercising his discretion to grant the order of stay of the proceedings before him.
- Whether or not the learned trial Judge was right in making an Order of stay of the proceedings when no matrimonial cause was pending between the parties at the time of commencement of the proceedings in the instant case.
- Whether or not the trial Judge was bound to consider which party would suffer greater hardship by his grant or refusal of the order of stay of proceedings.
- Whether the order of stay of proceedings was proper in the circumstances.”
The respondent on the other hand resolved the issue for determination simply as:
“Whether the learned Judge on the evidence before him correctly exercised his discretion in favour of the respondent pending the determination of the appeal in Suit No.CA/B/236/85.”
It is agreed by both sides to this appeal that the application before the H learned Judge in the Court below was brought pursuant to S.9(1) of the Matrimonial Causes Act 1970 which provides that:
“9(1) Where it appears to a court in which a matrimonial cause has been instituted under this decree that a matrimonial cause between the parties to the marriage or purported marriage has been instituted in another court having jurisdiction under this Decree, the court may in its discretion stay the matrimonial cause for such time as it thinks fit.”
(Note: Italics mine)
Sub-section (3) also states that:
“3. The court may exercise its powers under this section at any time and at any stage either on application by any of the parties, or of its own motion,”
What’s here contemplated is the exercise of discretionary power when and if the circumstances set out in Section 9(1) arise. So long as this discretion is properly exercised therefore, this court will be slow to interfere with same vide Enekebe vs. Enekebe (1964) N.M.L.R. 42.
In the submission of appellant’s counsel Section 9(1) of Matrimonial Causes Act 1970 contemplates the existence of two causes of action. I think it is more correct to say that two pending actions between the same parties must co-exist before it can apply.
In general the same principles which apply in the exercise of jurisdiction to grant or refuse a stay of execution of judgment or order pending the determination of an appeal also apply in the exercise of jurisdiction to grant or refuse a stay of further proceedings in a matter pending the determination of an appeal. These include the need to preserve the res status quo vide Kigo (Nig.) Ltd. vs. Holman Bros. (1980) 5 -7 S.C. 60; Okafor vs. Nnaife (1987) 4 N.W.L.R. (Part 64) 129; the existence or not of a valid appeal vide N.B.N. v. N.E.T. (1986) 3 N.W.L.R. (Part 31) 667; whether it would inflict greater hardship than it would avoid vide Arojoye vs. U.B.A. (1986) 2 N.W.L.R. (Pt.20) 101; Ikabala & Ors vs Ojosipe (1974) 4 S.C. 86 (92).
The need to ensure that a pending appeal is not rendered nugatory by a refusal of such an application is also an important consideration. The grant of a stay of proceedings involves a consideration of all the circumstances of the case concerning the litigation including the conduct of the parties and the effect of the application. The court may also exercise this inherent jurisdiction to stay proceedings in a pending action when such action is a duplication of an existing one vide jadesimi vs. Okotie-Eboh (1986) 1 N.W.L.R. (Pt. 16) 264 (267, 278). Having said this however it is also important to bear in mind that S.9(1) of the Matrimonial Causes Act aforementioned is a provision of a specific legislation which may not necessarily be bound by every facet of the general principles set out herein before.
The most important single issue on which a decision in this appeal may turn, and which is a pre-condition for the exercise by the court of its powers under S.9(1) of the Matrimonial Causes Act 1970, is whether or not there were, at the time that the learned Judge in the High Court at Warri was considering the application filed before him by the respondent, two pending actions for the dissolution of the marriage between the respondent and the appellant in two separate courts in this country.
On this appellant’s counsel has submitted;
(1) that there were no two such proceedings pending between the parties at that time or at all, because
(2) the action between the parties in the Lagos High Court had been discontinued, it having been properly withdrawn and
(3) that an appeal against a withdrawal of that action to the Court of Appeal is not “a matrimonial cause” because a withdrawal terminates a matrimonial cause
(4) that in any event, the action filed in Lagos and that filed in Warri are two different actions, even though the parties are the same, because the prayer for dissolution of the marriage in both petitions were based on different grounds.
Whether there are two separate actions pending between the parties would for a start depend on whether or not there is still any action pending in Lagos, more specifically whether the appeal to the Court of Appeal by the respondent is a pending “matrimonial cause” within the intendment of the Matrimonial Causes Act. Whilst respondent’s counsel says it is, the appellant urges the contrary. The sub-issue whether or not there has been a proper withdrawal or not, of the High Court action by the appellant does not in my view hold the key to a determination of the main issue. This is because, firstly, that is a matter pending the decision of the Court of Appeal in Lagos, which is fully seised with it. Secondly, there is an appeal against that decision which cannot be oversighted. There is no doubt in my mind that an appeal against a decision in a matrimonial cause is still a matrimonial cause. Quite apart from the fact that that is common sense, I think S.114 of the Act so contemplates. I refer particularly to sub-paragraph (d) of the definition of “matrimonial cause” which includes:
“(d) any other proceeding .in relation to concurrent, pending or completed proceedings of a kind referred to in paragraph (a) (b) or (c) above ”
Paragraph (a)(i) defines “matrimonial cause” as “proceedings for a decree of dissolution of marriage.” A terminated or withdrawn matrimonial cause is a completed proceeding, and an appeal is a proceeding “in relation to” it. If therefore an appeal is a matrimonial cause, there is one pending in the Court of Appeal (Lagos Division) between the parties to this action.
But is it on the same or different causes of action? Respondent’s counsel has submitted that they are because both actions are for the dissolution of the same marriage, between the same parties. The submission of learned senior advocate that the causes of action are different or that the actions are of a different nature because the prayer for dissolution contained in both are based on different grounds is indeed a very novel one for which no legal authority has not surprisingly been cited. This submission is, with respect to learned senior counsel, misconceived because firstly, there is only one ground for the dissolution of all marriages under the Matrimonial Causes Act, to wit, “that the marriage has broken down irretrievably” vide S.15(1) of the Act. The sub-paragraphs of sub-section 2 thereof, eight of them – (a) to (b), are only various species of the break-down, or to put it differently, a petitioner who satisfies the court on anyone or more of those facts, would be entitled to a finding that the marriage has irretrievably broken down, and consequently, be entitled to a decree dissolving same. They do not constitute separate grounds on the basis of which a dissolution can be granted. This is quite different from the position before the promulgation of that decree when there were several and distinct grounds for the dissolution of a marriage, the most important of which were cruelty, adultery and desertion. Secondly, the fact that failure to succeed because anyone or more of the set of facts under Section 15(2) has not been proved, does not prevent the commencement of subsequent proceedings for dissolution of marriage relying on another set of those facts, does not mean that the sub-sections create “separate causes of action.” There is I repeat only one cause of such actions generally “that the marriage has irretrievably broken down.”
The further submission that different actions between the same parties can be filed in different courts simultaneously so long as “the grounds” are different is even more misconceived. In the first place, this will at best,even if it were legally permissible, be an abuse of the process of the court. On the other hand it can very properly be regarded as “a fishing expedition” by any party who files two of such actions, on the ground that he does not seem to know what set of facts he really wishes to rely on to succeed. Further, it is at best a hypothetical proposition because all the set of facts that can be canvassed in the different courts can be relied on in the same action in one single court. Finally, it is the type of situation in which Section 9(1) is applicable to stay all other but one of the actions. In my view therefore there cannot co-exist at one and the same time two or more actions for dissolution of marriage between the same parties in respect of the same marriage in different courts in this country. In the instant case, the existence of a pending appeal in the Court of Appeal in respect of the same marriage between the present parties is prima facie a ground for staying proceedings of a subsequent petition for dissolution of the same marriage in the High Court of Bendel State, Warri Division, because there are two separate matrimonial causes pending between the two parties.
I do not think it is proper in this case for this court to embark on the exercise of determining whether the appeal pending before it (Lagos Division) is frivolous or full of substance. Suffice it to observe that the Lagos High Court granted an application for leave to appeal.
Granted that the existence of the two actions created a situation in which the provisions of Section 9(1) could apply, did the learned trial Judge correctly exercise his discretion by granting a stay in the circumstances of this case? Some issues have been raised by appellant’s counsel which need to be further and briefly considered before a final answer can be given to the question posed. The first is that of hardship. It has been submitted by appellant’s counsel that the appellant will suffer greater hardship as a result of this order made by the trial court. What this hardship consists of is that he cannot secure the dissolution of his marriage soonest. There is really no force in this submission. The appeal in the Court of Appeal, Lagos, is ready for hearing, briefs having been filed. Had the appellant exercised a little patience he could have secured accelerated hearing of same, and judgment would have been delivered either way before the end of 1987. Even if the judgment is against him (i.e. if the appeal were allowed), the matter would be remitted back to the High Court of Lagos for hearing of the petition on its merits. Thereupon he would have promptly, and with due notice, filed a notice of discontinuance, and got the cause in Lagos High Court struck out. He would then have proceeded to file a fresh cause in the High Court at Warri latest early in 1988, which would have been heard and concluded before the end of that year. The fact that the dissolution of the marriage is far from being effected, on the basis of the scenario just set out, is in my view entirely his fault and he cannot be heard to complain of hardship. The second is a complaint that the trial High Court Judge was too brief in his judgment and failed to consider all the issues of law properly raised before him. There is substance in this complaint.
It is the duty of a trial Judge to consider all the issues canvassed before him and to make findings thereon vide Bala vs Bankole (1986) 3 N.W.L.R. (Pt.27) 141. He did not do so and his ruling was too sketchy. He concentrated on what he saw as the main issue in this case without even as much as commenting on other issues. This main issue however as shown by me above, is the one on which a decision on this matter finally turns. His decision did not therefore occasion a miscarriage of justice, and this complaint, which is the subject matter of the first issue for determination, cannot be a ground for setting aside his decision. As against these complaints is that of the respondent that the effect of proceeding with and concluding the High Court Warri action, without first disposing of the appeal in the Court of Appeal, would be to render that appeal nugatory. There is greater substance in this complaint, and as shown earlier, it is desirable that the appeal should first be disposed of before hearing in the High Court Warri cause can be embarked upon. The answer to the question posed therefore must be that the trial Judge at Warri correctly exercised his discretion to stay proceedings in the action before him pending the conclusion of the appeal in the Court of Appeal against the decision of the High Court of Lagos.
Accordingly, this appeal must be and is hereby dismissed with costs to the respondent assessed at N250.00 only.
Other Citations: (1989) LCN/0082(CA)
