Joshua Omotunde V. Mrs. Yetunde Omotunde (2000)
LawGlobal-Hub Lead Judgment Report
OLUFUNLOLA OYELOLA ADEKEYE, J.C.A.
The substance of this appeal is the setting aside of the two rulings of the High Court of Oyo State firstly – the ruling of the court delivered on the 14th of July, 1999 – whereby the learned trial Judge refused to set aside the order of the court made on 11th of December, 1998; Secondly the ruling and order of court made on the 11th of December, 1998 which struck out the petitioner’s petition for lack of jurisdiction. The petitioner, Dr. Joshua Omotunde now appellant, instituted suit No. 1/27ID/98 at the High Court of Oyo State Ibadan Division by a petition for a decree of dissolution of his marriage to the respondent-cross petitioner – Mrs. Omotunde.
Facts which led to the instant appeal are briefly as follows:- The appellant and respondent were married under the Matrimonial Causes Act at the Marriage Registry of Ero Local Government in Ekiti State on the 22nd of March, 1986. The marriage was blessed with two children who are now living with the respondent. The appellant left Nigeria for the United States of America on the 4th of June, 1988 to work as a medical practitioner. He visited Nigeria in June, 1993 whereupon he promised to make necessary arrangements to facilitate the respondent and the children of the marriage to join him in the United States. The appellant had ever since not visited Nigeria. He makes financial provisions for the maintenance of the children of the marriage – which the respondent however considered as meagre compared with the expenses of bringing up the children by her. The appellant filed his petition, marriage certificate, the verifying affidavit signed by the appellant personally, and the appellant’s counsel’s certificate of reconciliation – vide pages 1-9 of the records. The respondent filed an answer to the petition and a cross-petition – see pages 13-20 of the record of appeal. At the hearing of the petition, before the appellant called evidence, the appellant’s counsel moved the court by oral application, praying for an order of Decree nisi having regard to the counsel’s view that both parties had admitted in their pleadings that the parties have lived apart for more than three years, without calling any evidence. The respondent’s counsel however opposed the oral application on the ground that a Decree nisi is a declaration of right – the petitioner must prove his case with or without admission and that the issue of domicile of the appellant was being challenged without taking evidence – see pages 32-34 of the records of appeal. The appellant’s counsel in his reply to the respondent’s counsel’s submission on point of law urged the court to take the facts stated in the petition and the Marriage Certificate as satisfactory proof of the appellant’s domicile of origin – vide page 35 lines 34-35 of the records. In a considered ruling delivered by the learned Judge both the petition and the cross-petition were struck out. Subsequent to the ruling, the appellant filed an application before the lower court to set aside the order striking out the petition and cross-petition on the ground that the order was a nullity having been made without jurisdiction. This application to set aside the order was heard by another Judge – who also dismissed the application to set aside the former ruling on the ground that same amounts to sitting on appeal over the judgment of his learned brother. The appellant being dissatisfied with the two rulings filed his notice of appeal. His first notice was filed within time on 16/8/99 – against the ruling of 14/7/99. The 2nd notice was filed on 31/1/2000 pursuant to the leave of court granted on 19/1/2000 – pages 49-52, and 53-57 of the records. In the notice filed on 16/8/99 – the grounds of appeal without the particulars are as follows:-
(1) The learned trial Judge misdirected himself when he failed to appreciate the essential nature of the petitioner/appellant’s motion praying the court for an order setting aside the earlier order of Court granted 11th of December, 1998 on the ground that the said order was a nullity having been made without jurisdiction and thereby occasioned a miscarriage of justice.
(2) The learned trial Judge erred in law when he held that he had no jurisdiction to grant the petitioner/appellant’s application praying the court to set aside the order of 11th December, 1998 and struck out the petitioner/appellant’s application on the ground that entertaining and/or granting same would amount to sitting on appeal on the order of a court of co-ordinate jurisdiction.
(3) The learned trial Judge erred in law by not following and applying the authoritative and binding decision of the Supreme Court in Adegoke Motors Ltd. v. Adesanya (1989) 3 NWLR (Pt.109) 250 at 273 in the determination of the petitioner/appellant’s motion before him.
(4) The learned trial Judge having held that it had no jurisdiction to entertain the Petitioner/appellant’s application erred in law by failing to consider the petitioner/appellant’s reliefs on the merit in the possible event of a higher court holding that the learned trial Judge’s view on the lack of jurisdiction to entertain the petitioner/appellant’s motion is wrong.
Five grounds of appeal were filed against the ruling delivered on the 11th of December, 1998 as follows:
(a) The learned trial Judge lacks jurisdiction to entertain the petitioner/appellant’s petition at the time he did when the issue raised by the respondent was not whether or not he had jurisdiction but that it was necessary to take evidence to decide the domicile of the petitioner.
(b) The learned trial Judge erred in law when he held as follows:-
“In the case of the Petitioner, who has been consistently domiciled in the United States of America since 1993 up to the time he filed his petition on the 21st day of April, 1998, it cannot be said of him that as at 21st April, 1998 when he was filing his petition through his learned Counsel he was domiciled in Nigeria and thereby came to a wrong conclusion.”
(c) The learned trial Judge misdirected himself in law by failing to hold that the respondent had not discharged the evidential burden on her to the effect that the petitioner/appellant had chosen and acquired any domicile for his domicile of origin – Nigeria.
(d) The learned trial Judge misdirected himself in law by equating the petitioner’s residence or working place in the United States of America since 1993 up to the time his petition was filed in 1998 – with the petitioner’s domicile and thereby occasioned miscarriage of justice.
(e) The learned trial Judge erred in law in failing to grant the appellant’s application for a Decree nisi in this petition in view of the admission of the parties in their pleadings that they have lived apart for more than three years immediately preceding the presentation of the petition.
The parties filed and exchanged briefs pursuant to the Rules of Court. At the time the appeal was heard the petitioner/appellant relied on the brief dated the 19th day of September, 2000 and filed 20th day of September, 2000, while the respondent adopted the brief dated and filed the 23rd day of October, 2000.
In his brief-the petitioner/appellant distilled four issues for determination – all of which cover the grounds in the two notices of appeal that read:-
“(2) Whether having regard to the settled position of the law, the trial High Court lacked jurisdiction to set aside the order of striking out made in this case which was made without jurisdiction, notwithstanding the fact that the order was made by another Judge of the same High Court. This issue covers grounds 1, 2, 3 and 4 of the 1st notice of appeal?.
(3) Whether the order of the High Court striking out the appellant’s petition is not a nullity having regard to the fact that it was made suo motu by the court without any application by either party and without affording the appellant the opportunity of being heard? This issue covers grounds 1 of the 2nd notice of appeal?.
(4) Whether the appellant is not domiciled in Nigeria at the time of filing his petition in this case. The issue covers grounds 2, 3 and 4 of the 2nd notice of appeal?.
(5) Whether a case for granting a Decree nisi on the petition of the appellant had not been made out before the trial High Court which covers ground 5 of the 2nd notice of appeal?”.
Similarly, the respondent in her brief of argument formulated four issues for determination as follows:-
(1) Whether having struck out the appellant’s petition for lack of jurisdiction, the court still had the jurisdiction to set aside its order made in the first instance?. (Grounds 1 and 4 of the 1st notice of appeal)
(2) Whether the lower court was entitled to strike out the petition as it did having found that the petitioner was not domiciled in Nigeria? (Ground 1 of the 2nd notice of appeal)
(3) Whether the averments in the petition and cross-petition without more are sufficient in law to establish the domicile of the petitioner given that the domicile of the petitioner is in issue? (Grounds 2, 4 of the 2nd notice of appeal)
(4) Whether the appellant is entitled to the order of Decree nisi without calling evidence?.
The issues formulated by both parties cover the same field, regardless of the fact that the issues formulated by the respondent are more concise and straightforward – the court will lift the issues formulated by the appellant as the issues for determination in this appeal.
Issue One
Whether having regard to the settled position of the law – the trial court lacked jurisdiction to set aside the order of striking out made in this case which order was made without jurisdiction, notwithstanding the fact that the order was made by another Judge of the High Court. The learned Counsel for the appellant hinged his submission on jurisdiction, competence and duty of the trial court to set aside its decision. The learned trial Judge who gave the ruling declined jurisdiction to set the controversial order aside as that would amount to sitting on appeal over the ruling of his learned brother. The learned trial Judge who gave the ruling now sought to be set aside on the 11th of December, 1998 – did not decide the issue of the appellant’s entitlement to Decree nisi but rather, he struck out the petition on the ground that the appellant was not domiciled in Nigeria at the time he presented the petition.
There was no application for striking out of the petition by any of the parties. The respondent was pressing the court for calling evidence as this would afford her the opportunity of seriously drilling the petitioner under cross-examination in the witness box. None of the parties addressed the court on issue of domicile – or even on the issue of striking out- before he made the order. The court was urged to set aside the order being a nullity. The learned Counsel submitted that a court has an inherent power to set aside an order which is a nullity – and anybody affected by such order is entitled to have it set ex-debito justitiae – where the conditions have been met by the applicant. He emphasised that a court could set aside a judgment or order granted in a number of circumstances, and an order obtained which amounts to a nullity is one of them.
He cited the cases of Adegoke Motors Ltd v. Adesanya (1989) 3 NWLR (Pt.109) 250 at 273; Sanusi v. Ayoola (1992) 9 NWLR (Pt.265) 275 at 292; ACB Plc. v. Losada (Nig.) Ltd. (1995) 7 NWLR (Pt.405) 26 at 45; Ogbu v. Urum (1981) 4 SC 1; Ojiako v. Ogueze (1962) 1 SCNLR 112; Akere v. Adesanya (1993) 4 NWLR (Pt.288) 484; S.G.B. (Nig.) Ltd. v. Awaye Motors Co. Ltd. (1992) 4 NWLR (Pt.234) 231; ACB v. Losada (1992) 5 NWLR (pt.225) 572, 589-590; Mbadinuju v. Ezuka (1994) 8 NWLR (Pt.364) 413 at 422; Elebute v. Faleke (1995) 5 NWLR (Pt.375) 82 at 103; Maiwada v. Pate (1995) 8 NWLR (Pt.412) 191 at 198; Skenconsult (Nig.) Ltd. v. Ukey (1981) 1 SC 6; Obayuwana v. Ede (1998) 1 NWLR (Pt.535) 670 at 679-680.
In the case of Mohammed v. Husseini (1998) 14 NWLR (Pt.584) 108 at 130- it was held that –
“The principle is that unless and until the court pronounced a judgment on the merit or by consent it retains the power to set aside its own default judgment.”
The learned Counsel submitted that there is only one High Court of Oyo State with one jurisdiction – so that the order to set aside could be made by any of the Judges. In his reply learned Counsel for the respondent – Mr. Olatunji Sheriff put the question being asked simply as – when will it be proper for a High Court to exercise its inherent power to set aside its earlier order made in a matter? The Supreme Court had decided in a number of decisions that where in the course of proceedings there has been a fundamental defect, which affects the jurisdiction and competence of the court, and the proceedings and orders made therefrom would obviously end up being nullities, the court that made such order can invoke its inherent power to set same aside. In a case where the court is competent, and the order is the result of exercise of the Judge’s judicial discretion after hearing the evidence the decision will only be appealable. He cited the case of Skenconsult (Nig.) Ltd. v. Ukey (1981) 12 NSCC 1 at 4 ratio 8. The grounds adumbrated by the appellant in the lower court vide pages 25-26 of the record, in support of his motion to set aside the order striking out his petition are that:-
(a) The striking out order was a nullity having been made without jurisdiction.
(b) There was no application for striking out of the petition by any of the parties when the court made the order.
(c) The issue of whether the petition should be struck out or not was never raised in court and parties were not heard in respect of same.
(d) On 25th November, 1998 when the petition came up for hearing, parties addressed the court only on the application for a Decree nisi made on the ground that the parties in their pleadings agreed that they had lived apart for three years before presentation of the petition.
On the 25th of November, 1998 – the learned Senior Advocate prayed the court to grant an order of Decree nisi without calling evidence but to go by the admission of having lived apart for a period of three years before presentation of the petition in the pleadings of the parties – vide pages 32-35 of the record. During the proceedings the learned Senior Advocate canvassed arguments to the effect that the appellant is domiciled in Nigeria. He referred to the Marriage Certificate attached to the petition as evidence establishing domicile of origin of the appellant. When arguments were made on the issue of the domicile of the petitioner the learned trial Judge concluded that the petitioner was not domiciled in Nigeria – hence the trial Court lacked jurisdiction in the matter.
Consequently, the learned trial Judge struck out the petition for lack of jurisdiction. Before a court finally determines a case pending, it is seised with jurisdiction to determine whether or not it has jurisdiction, but once the court has declined jurisdiction it is functus officio – such a decision can only be referred to an appellate court. The inherent jurisdiction of the court to set aside its earlier order is not applicable to the order before this court- the court is to uphold the ruling of the 14th of July in the circumstance of this case.
The bone of contention in this issue is simply whether the court below having struck out the appellant’s petition for lack of jurisdiction – the same court still has jurisdiction to set aside that order of striking out and consequently to revive the petition? The statutes, the Rules of Court and the array of legal authorities decided by the apex court of this country have established circumstances which must exist before a court of record can set aside its judgment or order given in a particular case. The attitude of the court towards setting aside of judgment was illustrated in the case of Adigun v. Attorney-General, Oyo State (1987) 2 NWLR (Pt.56) 197, (1987) 1 All NLR (Pt.1) 238, that-
Section 6(6) (a) of the 1979 Constitution which provides that judicial powers vested in the courts shall extend notwithstanding anything to the contrary in the Constitution to all inherent powers and sanctions of a court of law does not empower the court to review its own decision. If it were otherwise, there would be no finality about any judgment, of this courts and every affected litigant could bring further appeals, as it were, ad infinitum. That is a situation that must not be permitted.
Generally speaking where a court has decided on an issue and there is in existence the judgment or order of a court of competent jurisdiction that decision is valid and subsisting. The same case cannot be litigated upon by the same court. It is never part of our administration of justice that a court shall sit on appeal over its own decision, whether or not the decision is right or wrong, simply because after making an order or giving a judgment or ruling a court becomes functus officio. Asiyanbi v. Adeniji (1967) 1 All NLR 82; John Chukwuka & Ors. v. Ezulike (1986) 5 NWLR (Pt.45) 892; Oyeyipo v. Oyinloye (1987) 1 NWLR (Pt.50) 356; Cardoso v. Daniel (1986) 1 All NLR 25, (1986) 2 NWLR (Pt.20) 1; Onwuchekwa v. C.C.B. (Nig.) Ltd. (1999) 5 NWLR (Pt.603) 409.
Circumstances in which a court may invoke its inherent power to set aside its judgment or order are:-
(1) To correct any clerical error or mistakes arising from accidental slip or omission or to vary the judgment or order so as to give effect to its meaning or intention under the Rules of Court Order 5 rule 3 Court of Appeal Rules, 1981.
(2) Until a court pronounces a judgment on merit or by consent of the parties a court retains the power to set aside its default judgment obtained in the absence of one of the parties or default of pleadings – The power to do so is however discretionary and has to be exercised judiciously.
Mohammed v. Husseini (1998) 14 NWLR (Pt.584) 130; paragraphs D-E.
Williams v. Hope Rising Voluntary Funds Society (1982) 1-2 SC 145; Ugwu v. Aba (1961) 1 All NLR 438; Doherty v. Doherty (1964) NMLR 144 at 145; Momoh v. Gulf Insurance Corporation (1975) 1 NMLR 184 at 186; Khawam v. Elias (1960) SCNLR 516 at 523 paragraphs D-G; High Court Civil Procedure Rules.
(3) Where a judgment has been obtained as a result of fraud practiced by one of the parties Ojiaka v. Ogueze(1962) 1 SCNLR 112, (1962) 1 All NLR 58; Ekerete v. Eke (1925) 6 NLR 118; Craig v. Kanseen (1943) K.B. 256; Agunbiade v. Okunoga (1961) 1 All NLR 110.
(4) Where a judgment is a nullity, due to a fundamental defect which goes to the issue of jurisdiction and competence of the court.
J. A. Folorunso v. Shaloub (1994) 3 NWLR (Pt.333) 413 at 422, paragraphs G-H; Skenconsult (Nig.) Ltd. Ukey (1981) 1 SC 6; Maiwada v. Pate (1995) 8 NWLR (Pt.412) 191, 198; ACB v. Losada (1992) 2 NWLR (Pt.225) 572; Akere v. Adesanya (1993) 4 NWLR (Pt.288) 484;
Adegoke Motors Ltd. v. Adesanya (1989) 3 NWLR (Pt. 109) 250 at 273; Sanusi v. Ayoola (1992) 9 NWLR (Pt.265) 275; Edem v. Akamkpa L. G. (2000) 4 NWLR (Pt.651) 70 at 81, paragraphs B-C.
I am duty bound to examine the circumstances which led to the ruling of the court striking out the petition and cross-petition.
In the court’s proceeding of the lower court on the 25th of November, 1998, Chief Afe Babalola said that he was in court to address his lordship on whether an order for dissolution of marriage can be made where the ground is that of living apart and parties in the pleadings before the court agree on the point. The petition before the court is based on living apart for over three years.
The combined effect of paragraphs 8 (VI-VIII) of the petition, paragraph 10 of the answer (VI-VIII) and paragraph 1 of the Reply is that, both the petitioner and the respondent are ad idem on the crucial fact that the parties have lived apart for over three years, and the respondent agreed that they have lived apart. Petition is brought pursuant to section 15(2)(1) of the Matrimonial Causes Act. Section 82 of the Decree provides that the matter of fact shall be taken to be proved if it is established to a reasonable satisfaction of the court. Under Order 7 rule 1 (d) the respondent may by filing an answer admit the truth of a fact material to the proceeding. In that position, it is not necessary to further prove an admission – as in law what is admitted need no further proof Kamalu v. Umunna (1997) 5 NWLR (Pt.505) 321 at 326.
Dissolution of marriage should be made a painless exercise. He cited Greenfell v. Greenfell (1978) 1 All NLR 561 at 566; Lasebikan v. Lasebikan an unreported decision of Oyo State High Court – HOY 136D/82 delivered on 7/4/83. In respondent’s answer and cross-petition, the court is being urged to join irreconciliable parties together. It is a novel relief which is unknown to law. Mr. Sheriff replied that the application is incompetent and it cannot be made orally – it should be made by a formal application brought in writing and supported by affidavit evidence. He agreed with the submission that an admitted fact needs no further proof and that once parties had lived apart for a period of three years the court can make an order for dissolution – but it cannot be made at this stage. In the case of Bello v. Eweka (1981) 1 SC 101 – a party seeking a declaration of right shall satisfy the court that he is entitled by evidence and not by mere admission – as the court has a discretion to exercise based on the strength of the case of the claimant. There are points based on admission on the pleadings. The fact referred to is one of several incidents highlighted by the respondent. The petitioner should not shy away from going into the witness box to be drilled by the respondent. The germane issue in the answer to the petition is the issue of whether the petitioner is domiciled in Nigeria within the meaning of the Matrimonial Causes Act – vide paragraph 6 page 2 of the Answer – which questions the court’s jurisdiction. The court cannot grant an order nisi without resolving the issue of Domicile.
When the learned Counsel to the respondent brought up the issue of Domicile of the petitioner for the purpose of this petition parties realised that, it is a matter touching upon the jurisdiction of court to entertain this suit. Both parties realized that it is important and fundamental to the competency of the learned trial Judge to entertain the petition. It is embodied in paragraph 6 of the answer to the petition, and both parties are well aware of this. I agree that the issue of the domicile of the petitioner at the time of the hearing of this petition is vital and germane as it is a condition precedent to the hearing of his petition by any court as reflected in the Matrimonial Causes Act. Section 2(2) of the Matrimonial Causes Act Cap. 220 Vol. XII of the Laws of the Federation, 1990 has this to say under jurisdiction in Matrimonial Causes that-
Proceedings for a decree –
(a) of dissolution of marriage; or
(b) of nullity of a voidable marriage; or
(c) of nullity of a void marriage; or
(d) of judicial separation; or
(e) of restitution of conjugal rights, or
(f) of jactitation of marriage
may be instituted under this Act only by a person domiciled in Nigeria.
Section 2(3) of the Act provides that:-
“For the avoidance of doubt it is hereby declared that a person domiciled in any State of the Federation is domiciled in Nigeria for the purposes of this Act and may institute proceeding under this Act in the High Court of any State whether or not he is domiciled in that particular State”.
Order V rule 3(2) and (3) of the Act states further that-
“Rule 3(2) The petition shall state that the petitioner is within the meaning of the Act, domiciled or resident, as the case may be in Nigeria”.
Rule 3(3)The facts, but not the evidence by which the facts are to be proved, upon which the court shall be asked to find that the petitioner is, within the meaning of the Act domiciled or resident, as the case may be, in Nigeria shall be stated in the petition as concise a form as the nature of the case allows.
At that stage of the proceeding, it is certain that the issue of domicile of the petitioner vis-a-vis the jurisdiction of court shall become the focus of attention of the trial Judge and Counsel, and that the court has to be satisfied on that point in the light of the petitioner’s application for a Decree nisi.
Petitioner’s Counsel decided to address this court on that issue – vide page 6 lines 15-18,25-44. The court thereafter adjourned for a considered ruling – which he delivered on the 11th of December, 1998 striking out the petition and cross-petition – based on lack of jurisdiction by court. If it is realised that jurisdiction means the authority which a court has to decide matters before it or to take cognisance of matters presented in a formal way for its decision, the limits of this jurisdiction may be circumscribed or restricted by statute.
Ndaeyo v. Ogunnaya (1977) 1 SC 11; National Bank of Nigeria v. Shoyoye (1977) 5 SC 181.
As jurisdiction is a radical and crucial question of competence, for if the court has no jurisdiction to hear a case, the proceedings remain a nullity, however well conducted and brilliantly decided they might otherwise have been as a defect in competence is not intrinsic but rather extrinsic to the adjudication.
Madukolu v. Nkemdilim (1962) 2 SCNLR 341 at 348; Ogunmokun v. Military Administrator, Osun State (1999) 3 NWLR (Pt.594) 261.
Once the jurisdiction of a competent court of record is challenged, it must be resolved first before taking any other step. This is also in compliance with Order 23 rules 2 and 5 of the High Court of Oyo State (Civil Procedure) Rules, 1988.
The learned trial Judge acted timeously in entertaining an address on the issue of domicile of the petitioner and making an order on same. The court is now being asked to rescind the order being a nullity. I have pointed out earlier on that if a court makes an order which it has no jurisdiction to make, it has jurisdiction to rescind the order so as to restore status quo. Is the order of court made on the 11m of December, 1998 a nullity?
Since a Judge is required to confine himself to the claim before him the trial court exceeded that limit in this case, particularly as a court is not expected to grant a relief not claimed by the parties – Inua v. Nta (1961) 1 All NLR 576; Akinbobola v. Plisson Fisko (1991) 1 NWLR (Pt.167) 270 at 288; Ogunmokun v. Mil. Administrator, Osun State (1999) 3 NWLR (Pt.594) 261; Ekpenyong v. Nyong (1975) 2 SC 71; Kalio v. Daniel-Kalio (1975) 2 SC 15; Makanjuola v. Balogun (1989) 3 NWLR (Pt.108) 192; Olurotimi v. Ige (1993) 8 NWLR (Pt.311) 257; Union Beverages v. Owolabi (1988) 1 NWLR (Pt.68) 128; Ezeonwu v. Onyechi (1996) 3 NWLR (Pt.438) 499.
As regards the admission on the face of the pleadings of the parties. An admission pursuant to section 19 of the Evidence Act defines an admission as a statement oral or documentary which suggests any inference as to any fact in issue or relevant fact which is made by any person. It is trite also that averments contained in pleadings are no evidence – so that the court has to take evidence to support such averments in order to do substantial justice to the parties. By virtue of sections 135, 136 and 137 of the Evidence Act Cap. 117, Laws of the Federation of Nigeria, 1990 the onus placed upon the plaintiff is to establish his case by credible, satisfactory and convincing evidence based on the pleadings by preponderance of evidence of probability. Pleading is the life wire of the proceeding in our adversorial system of civil jurisprudence – the main function of which is to focus with much certainty as far as possible the various matters actually in dispute amongst the parties and those in which there is agreement between the parties by avoiding element of surprise being sprung on the opposite party. George v. U.B.A. Ltd. (1972) 8-9 SC 264; Oduka v. Kasumu (1968) NMLR 28; George v. Dominion Flour Mills Ltd. (1963) 1 SCNLR 117.
It is embodied in the Uniform High Court (Civil Procedure) Rules adopted by each State, that pleading shall contain only statement of material facts in a summary form on which parties rely for his claim and defence and not evidence by which they are to be proved.
The case of Mortune v. Balonwu (2000) 5 NWLR (Pt.655) 87 citing various decisions of the Supreme Court – in Ogunleye v. Arewa (1960) WRNLR 9; Babajide v. Adisa (1968) 1 All NLR 254; Bello v.Eweka (1981) 1 SC 101;Motunwase v. Sorungbe (1988) 5 NWLR (Pt.92) 90;Salu v. Egeibon (1994) 6 NWLR (Pt.348) 23 -settled for the law that the court does not make declaration of right either on admissions or in default of pleadings. If a proper application for judgment had been made according to the Rules of Court, the applicant would still not be entitled to judgment on what were proffered as admissions to prove his claims. In the instant appeal the averments in the petition, and the answer – and the admissions appearing therein cannot be substituted for evidence. More particularly as section 44(3) of the Matrimonial Causes Act stipulates that:-
“The court shall not grant a decree of dissolution of marriage without receiving evidence by the petitioner in support of the petition”.
The petitioner has to give evidence while the court will not belabour the issue on the facts already admitted by the parties which in law need no further proof.
Due to the far reaching consequences of taking a case without jurisdiction the courts will pay attention to the issue of jurisdiction when raised by the parties or if raise same suo motu as it will be inappropriate or futile to exercise jurisdiction where there is none Peenok Investments Ltd. v. Hotel Presidential Ltd. (1983) 4 NCLR 122; Kalio v. Daniel-Kalio (1975) 2 SC 15; Barclays Bank Ltd. v. Central Bank of (Nig.) Ltd. (1976) 6 SC 175; Bronik Motors Ltd. v. Wema Bank Ltd. (1983) 1 SCNLR 296; Owoniboys Technical Services Ltd. v. John Holt Ltd. (1991) 6 NWLR (Pt.199) 550.
It is however important that where a jurisdictional issue being so pivotal and fundamental is raised suo motu by the court the parties must be accorded the opportunity to react to the issue. Galadima v. Tambai (2000) 11 NWLR (Pt.677) 1 SC; Adeigbe v. Kusimo (1965) 1 NMLR 284. Pages 33-35 of the records do not show that the respondent who raised the issue of domicile of the petitioner – was given adequate opportunity to react to this. This in my view amounts to the breach of fair hearing – or deprivation by the respondent to put her case properly before the court. Any decision based on this procedure is obviously a nullity.
Issue One succeeds.
Issue Two
Whether the ruling delivered by the court on 11th December, 1998 striking out the appellant’s petition was not a nullity and therefore liable to be set aside. This issue is covered by ground one of the 2nd notice of appeal. Counsel for the appellant submitted that when the learned trial Judge made the order of 11th December, 1998 striking out the appellant’s petition two fundamental requirements for the validity of the order were not present namely:-
(i) There was no application before him asking for the striking out of the petition;
(ii) The trial Judge did not invite any of the parties to address him on the striking out of the petition before the order was made.
It is trite that parties and the court are bound by the reliefs sought from the court and the court has no jurisdiction to grant what was not claimed. What the petitioner sought in the oral address by his senior counsel before the lower court was an order of a decree nisi dissolving the marriage between him and the respondent based on the facts agreed to in the pleadings. The respondent opposed this and canvassed that the matter should go on trial and should not be decided on the pleadings of the parties. The order of the court cannot stand. Assuming that the court suo motu felt that the order of striking out is one that it was inclined to make in this case, what the court ought to do in the circumstances is to rid itself of the vice of making an order without hearing the parties, was to call the parties to address him on the propriety of making the order and thus avail them a right to fair hearing before the order can be made. Mr. Okunloye cited the cases of:- Ezeonwu v. Onyechi (1996) 3 NWLR (Pt.438) 499; Ekpenyong v. Nyong (1975) 2 SC 71; Union Beverages v. Owolabi (1988) 2 NWLR (Pt.68) 128; Olurotimi v. Ige (1993) 8 NWLR (Pt.311) 257; Aghadiuno v. Onubogu (1998) 5 NWLR (Pt.548) 16; Pavex Int. Co. Ltd. I.B.WA. (1994) 5 NWLR (Pt.347) 685; Commissioner for Works, Benue State v. Devcon Ltd. (1988) 3 NWLR (Pt.83) 407 at 420.
Ojiako v.A.-G., Anambra State (2000) 1 NWLR (Pt.641) 375, 383-383.
In his reply Mr. Sheriff learned Counsel for the respondent submitted that, in the determination of the oral application for Decree nisi the trial Court considered the arguments of both parties on the domicile of the appellant and concluded that the appellant was not domiciled in Nigeria at the time of filing his petition and as such declined jurisdiction in the matter. The issue of jurisdiction being a question of law the court can act ex proprio motu even when not raised by the parties. Parties addressed the court on the issue – the court was right to have arrived at a conclusion on the issue. When the court held that it lacks jurisdiction it is a consequential order that the case be struck out. The court does not have to wait for any application by the parties to make an order of striking out. The appellant’s appeal in regarding the order of striking out as a nullity – the appellant’s appeal on the issue is misconceived and it should be resolved in favour of the respondent.
I have already considered the foregoing under issue No.1. I can only but confirm that a court has no power to grant to a party any relief not specifically claimed. There are a long line of cases already cited under issue one in support of this fact – which to my mind to enumerate them again here will be merely repetitive. The order made by court is not consequential to the order before the court to grant a Decree nisi to the parties on their admission. If such application could not be granted in the circumstances the consequential order would have been to overrule the application – and direct parties to proceed to trial. Issue No.2 is resolved in favour of the appellant.
Issue No.3 is whether the appellant is not domiciled in Nigeria at the time of filing his petition. The issue relates to grounds 2-4 of the 2nd notice of appeal. The learned Counsel for the appellant – Mr. Okunloye canvassed this issue on the domicile of the petitioner and consequently his competence to present this petition. It is manifest from the judgment of the court that the learned trial judge misconstrued the concept of domicile in the con of the proceedings before him. On whether or not the petitioner is domiciled in Nigeria, the trial Judge said as follows:-
Section 2(3) of the Matrimonial Causes Act does not say that a person that is domiciled outside Nigeria should be taken as domiciled in Nigeria and any contrary view to this must be wrong. In the case of the petitioner, who has been consistently domiciled in the United States of America since 1993 up to the time he filed his petition on the 21st day of April, 1998, it cannot be said of him that as at 21/4/98 when he was filing his petition through his learned Counsel, he was domiciled in Nigeria.
Where the foregoing the learned Counsel was convinced that the only pleading upon which the court came to this conclusion was the allegation of the respondent that petitioner left for United States of America in 1988 to work as a medical practitioner. He came home to Nigeria in 1993, and after 10 days he went back to the United States. Since then he has not visited Nigeria. There is no averment at all that the petitioner had taken on the citizenship of America. He has also not said that he would not return to Nigeria forever. The order of the court left no one in doubt that what the court referred to as domicile is merely the residence of the petitioner and not his domicile. But domicile is not residency and a person is not domiciled in a particular place simply because he is resident there. He cited cases to show that residence and domicile are two distinct factors – and that to establish a domicile, it is necessary to establish residence and an intention to remain there permanently.
Winans v. A.-G . (1904)7 All ER 410 at413; Fonseca v. Passman (1958) WRNLR 41 at 42; PROF AGBEDE Conflict of Laws (1990) 50; Moorhouse v. Lord (1863) 10 HL Cas. 272 285 – 286.
Domicile are of three types. He referred to the three obvious types of domicile. Domicile of Origin, Domicile of Choice and Domicile of Dependency. It is possible to change domicile of origin to domicile of choice. It is however a state of fact that has to be proved by evidence. The respondent cannot rely on inference from the petitioner’s long residence. It can only be done by showing with perfect clearness and satisfaction that the petitioner has actually abandoned his domicile of origin having regard to the fact that he has formed an intention permanently not to return to his place of origin; the burden of proving this change in domicile lies on the party who alleges that a domicile of origin has been changed. He referred to the cases of Re Flynn (1968) 1 All ER 49; Ramsay v. Liverpool Royal Infirmary (1930) All ER 12.
In the case of Bhojwani v. Bhojwani (1995) 7 NWLR (Pt.407) 349 at 364-365 – the court came to the conclusion that the petitioner who was born in Singapore, though he had lived in Nigeria since, 1979, and had been doing his business in Nigeria is not domiciled in Nigeria but in Singapore. He cited other Nigerian cases on Divorce like-
Adeoye v. Adeoye (1962) NNLR 63; Odiase v. Odiase (1965) NMLR 196; Udom v. Udom (1962) LLR 112; Koku v. Koku (1999) 8 NWLR (Pt.616) 672.
The appellant from the facts revealed in both the petition and the answer was born in Nigeria – he schooled in Nigeria and married the respondent in Nigeria. They both cohabited in Nigeria before the appellant travelled to the United States to work as a medical practitioner to better his lot. The appellant visited home in 1993 and keeps in constant touch with his Nigerian roots. He is domiciled in Nigeria. Mr. Sheriff – respondent’s Counsel submitted in respect of issue No.3 which is whether the averments in the petition and cross-petition without more are sufficient in law to establish the domicile of the petitioner given that the domicile of the petitioner is in issue. He mentioned that the issue of domicile in a divorce matter generally is a matter of evidence. The Matrimonial Causes Acts states that a petitioner must be domiciled in Nigeria at the time of his filing of his petition for divorce. The degree of proof required in divorce proceedings particularly where an answer to challenge the petition has been filed is different from that in civil proceedings. Section 15(2) of the Matrimonial Causes Acts requires a petitioner to satisfy the court of the facts alleged, and also at section 81 that it is the duty of the petitioner at the hearing to satisfy the court by evidence of witnesses to prove the various grounds on which the petition is based. The petitioner must adduce sufficient proof of the allegations put forward by the petition. A judgment in default is unknown in Matrimonial Causes and no admission made by the respondent is binding. Ibeawuchi v. Ibeawuchi (1974) UILR (Pt.1) 67; Olowu v. Olowu suit No. AB/51/71 of 10th April, 1973.
Domicile is a fundamental fact that a petitioner must show to the satisfaction of the court particularly when same is in issue. Since the petitioner did not adduce any piece of evidence before the lower court and in this appeal, the court should rely on the averments contained in his petition as satisfactory evidence establishing his domicile.
The cases cited by the petitioner/appellant were therefore not applicable. Issue No.3 – is on the issue of the domicile of petitioner/applicant as at the time of filing this action – as the respondent pleaded in paragraph 6 page 2 of the Answer that the petitioner is not domiciled in Nigeria within the meaning of the Matrimonial Causes Act. I have referred to the relevant section earlier on in my judgment – which I find appropriate to repeat for the sake of emphasis that proceedings for a Decree may be instituted under this Act only by a person domiciled in Nigeria vide section 2(2) of the Matrimonial Causes Act, while section 2(3) of this Act declares that a person domiciled in any State of the Federation is domiciled in Nigeria and may institute proceedings under this Act in the High Court of any State whether or not he is domiciled in that particular State.
In section 2(3) the word domicile used gives the connotation of residence. Little wonder that the learned trial Judge in his ruling of the 11th of December, 1998 concluded that –
In addition section 2(3) of the Act spells out which person can be said to be domiciled in Nigeria. Such a person must be domiciled in any State of the Federation i.e. in any of the current thirty-six States and the Federal Capital that make up Nigeria. Section 2(3) of the Matrimonial Causes Act does not say that a person that is domiciled outside Nigeria should be taken as domiciled in Nigeria and any contrary view to this must be wrong. In the case of the petitioner who has been consistently domiciled in the United States of America since 1993, up to the time he filed his petition on the 21st day of April, 1998, it cannot be said of him that as of 21/4/98 when he was filing his petition through his learned Counsel he was domiciled in Nigeria.
The petitioner having failed to comply with the condition precedent set in section 2 of the Matrimonial Causes Act Cap. 220 of 1990 is roundly incompetent to request this court to order a Decree nisi dissolving the marriage between him and the respondent.
The basis of jurisdiction in matrimonial causes under the Matrimonial Causes Act, 1970, is domicile. It is the domicile of a person that confers jurisdiction on the court to entertain his or her petition for dissolution of marriage. Where the domicile of a petitioner is not established the court will lack jurisdiction to decree a dissolution of marriage.
Osibamowo v. Osibamowo (1991) 3 NWLR (Pt.177) 85; Bhojwani v. Bhojwani (1995) 7 NWLR (Pt.407) 349.
The issue of the domicile of the petitioner forms the foundation or pivot of adjudication in this petition. Jurisdiction in this regard is normally territorial. Where a petitioner is supposed to be domiciled in Nigeria, and he is domiciled in another country, jurisdiction of the court any where in Nigeria is not applicable. Where a court lacks jurisdiction it lacks the necessary competence to try the case. It is therefore the condition precedent to adjudicating on the petition of the petitioner/appellant. In the case of Bhojwani (supra) cited by the parties – the importance of domicile was emphasised by Sulu-Gambari, JCA, (as he then was) where he stated as follows –
The issue of domicile is a threshold one which must first be considered because if it is found that the petitioner is not domiciled in Nigeria – the question whether the trial Court has jurisdiction to entertain the divorce petition will forthwith be settled and that will be end of the matter. To ascertain whether or not the petitioner has chosen Nigeria as his country of domicile the facts of his residence in Nigeria and his animus manendi will have to be considered. Is there evidence of the intention of the petitioner to make Nigeria his permanent home? Has the petitioner made Nigeria his permanent residence and principal establishment to which whenever he is absent, he has the intention of returning? The determination of the legal domicile of a person is paramount since it, rather than the actual residence, often controls or determines where a person may exercise his right to vote or other legal rights and privileges including the ascertainment of matrimonial domicile.
Black’s Law Dictionary Seventh Edition simply defines Domicile as the place at which a person is physically present and that the person regards as home, a person’s true, fixed, principal, and permanent home to which that person intends to return and remain even though currently residing elsewhere – same is also termed permanent abode. Every person has a domicile at all times, and no one has more than one domicile at once. Black’s Law Dictionary Seventh Edition defines a Residence as – (1) the act of fact of living in a given place for sometime a year’s residence. (2) The place where one actually lives as distinguished from a domicile. Whereas Residence usually just means bodily presence as an inhabitant in a given place, domicile usually requires bodily presence plus an intention to make the place one’s home. A person thus may have more than one residence at a time but only one domicile. Though the term domicile and residence are used synonymously. (3) The place where a corporation or other enterprise does business or is registered to do business. (4) A house or fixed abode.
The dictionary defines different types of domicile. Those relevant for the purpose of this are domicile of origin, domicile of choice and matrimonial domicile. Domicile of Origin. This is the first type of Domicile everybody acquires. It is the domicile of a person at birth derived from the custodial parents or imposed by law. Everybody at birth becomes a member of both a political and of a civil society, the former determines his political status or nationality, and the latter determines his civil status. The law which governs the civil society into which he is born the law of his country of domicile, is attached to his person and remains so attached wherever he goes, unless and untill he ceases to be a member of that society and he can only cease to be a member of that society by becoming a member of another civil society and so acquires a new domicile referred to as domicile of choice – the law of which becomes attached to him in that manner. A domicile of origin is retained until a fresh one is acquired. It is never destroyed, but remains in abeyance where a new domicile is chosen, and revives and comes again into operation when the new domicile is abandoned and then endures until a new domicile is acquired. Domicile of Choice – A domicile established by physical presence within a State or territory coupled with the intention to make it home. A person over the age of 21 other than a married woman or insane person may acquire a domicile of choice. In order to achieve this two conditions must be fulfilled-
(1) Residence in the country;
(2) There must be an intention to reside there permanently or at least indefinitely.
The facts upon which the court will make the findings about being domiciled in Nigeria are required to be stated in the petition by Order 5 rule 3. The court must look at all the facts for the determination of domicile.
The burden of proving that a domicile has been chosen in substitution for the domicile of origin is on the person who asserts that the domicile of origin is lost – the intention must be proved with perfect clearness.
Winans v. A.G. (1904) AC 287 at 290; Bhojwani v. Bhojwani (1995) 7 NWLR (Pt.407) 349.
The petition for Decree of dissolution of marriage pg.3 paragraphs 1-4 show that the petitioner is domiciled in Nigeria – by virtue of his birth and domicile of origin. The fuel that he resides in America does not deprive him of his domicile of origin. The marriage certificate is on page 9 of the records. The fact that he has acquired a new domicile other than his domicile or origin being asserted by the respondent has to be proved by her. On page 14 paragraph 6 of the answer to petition -the respondent alleged that the petitioner left Nigeria in 1988, and has only visited the country once in 1993 when he stayed for only ten days. There was no evidence of facts to the effect that the petitioner had changed his domicile before the court in her answer during the proceedings of the 25th of November, 1998. There was no clear evidence of the petitioner’s intention to change his domicile of origin which he acquired by virtue of his birth, to a domicile of choice by permanently living over there in the United States of America before the court when he held that the petitioner could not ask for dissolution of marriage as he was not domiciled in Nigeria – and the court declined jurisdiction, as one of the conditions precedent to jurisdiction has not been fulfilled. The third issue is resolved in favour of the appellant.
Issue No. 4
Whether a case for granting a Decree nisi on the petition of the appellant has not been made out before the trial court? (Ground 5 of the notice of appeal). The issue emphasised the fact that the learned trial Judge ought to have granted the Decree nisi sought by the petitioner as a case has been made out for the granting of the Decree nisi. The petitioner’s Counsel made an oral application to this effect without calling evidence based on the state of pleadings of the parties – by virtue of which the parties were ad idem that the parties have lived apart for a period of more than three years immediately before the presentation of the petition. Reference was made to paragraphs 8 (IV) and (VII) of the petition and paragraph 10 (VI) of the respondent’s answer. The petitioner is entitled to the relief sought as facts which are admitted needs no further proof, while admissions are the strongest form of proof. This dissolution shall be based on section 15(2)(1) of the Matrimonial Causes Act, 1970 which stipulates that the marriage has broken down where parties have lived apart for a continuous period of three years immediately preceding the presentation of the petition. The relief sought by the respondent in the cross-petition is not known to law – that the court should force the appellant to continue the relationship. Where it is alleged that a marriage has broken down irretrievably, it is irrelevant to enquire into the behaviour of the parties or the one who was guilty. The learned Counsel quoted from the cases of Nwabugwu v. Nwabugwu (1974) 4 UILR (Pt.11) 280 at 281; Ibeawuchi v. Ibeacwuchi (1974) UILR (Pt.103) 67; Rone Orugoh v. Rone Orugoh (1974) 4 UILR (pt.1) 120.The learned trial Judge did not consider this issue before the court at all – and did not rule on it. The issue was raised before the court based on documents – and this places the court in a good position as the trial court to decide and pronounce on the issue – pursuant to section 16 of the Court of Appeal Act. The court is to order a Decree nisi for the dissolution of the marriage between the appellant and the respondent – and to subsequently allow the appeal.
Mr. Sheriff put the issue as simply whether the appellant is entitled to an order of Decree Nisi without calling evidence. The learned Counsel held that this court lacks the jurisdiction to entertain the issue on the ground that the lower court did not consider it at all and did not rule on it. A Court of Appeal should not deliberate upon issues not considered by the court below. The learned Senior Advocate made an oral application before the trial court that since parties have by their pleadings agreed to have lived apart for a period of more than 3 years immediately before the presentation of the petition the court is to grant a Decree nisi for the dissolution of the marriage without calling evidence. The learned Counsel referred to the relevant paragraphs in the pleadings of the parties, and that there is no admission in the respondent’s answer to the petition. The entire pleadings must be read together – and not consider each paragraph in isolation so as to determine whether there was an admission by the respondent. He cited the cases of Pan Asian African Co. Ltd. v. N.I.C.O.N. Ltd. (1982) 9 SC 1 at 48; Titiloye v. Olupo (1991) 7 NWLR (Pt.205) 519 at 532.
Even if the respondent’s answer to the petition constitutes an admission, is the appellant entitled to an order of Decree nisi without calling evidence to prove his case – it is the view of the learned Counsel for the respondent that by virtue of section 44(3) of the Matrimonial Causes Act, Cap. 220 – Laws of the Federation of Nigeria, 1990, the court shall not grant a Decree of dissolution of marriage without receiving evidence from the petitioner in support of the petition. The application could not have succeeded before the lower court. A petition for the dissolution of marriage is a plea to the court to exercise its discretionary power in the petitioner’s favour. The court must act judiciously and judicially in arriving at its decision. A petitioner must in the circumstance adduce sufficient evidence establishing matters precedent to the grant of the Decree sought. A Decree nisi is only granted on satisfactory proof being given in support of a petition for dissolution of marriage. – Black’s Law Dictionary 6th Edition page 411. In view of the fact that the petitioner has not adduced evidence to establish his case, he is not entitled to obtain an order of Decree nisi he had requested. The appeal should be dismissed.
The crux of the matter in Issue No.4 for determination is whether the appellant was entitled to an order of Decree nisi based on the admission on the pleadings without calling evidence. I have considered this issue under issue no. 1, but I shall just expatiate on same by referring to the relevant paragraphs. Paragraph 8(IV) and 8(VII)of the appellant’s petition and paragraph 10(VI) of the respondent’s answer and paragraph 2 of the appellant’s reply to the respondent’s.
Paragraph 8(IV):-
“The petitioner left Nigeria for United States of America on the 4th of June, 1988, all efforts to convince the respondent to come over to the United States of America to come and live with him were met with frustrations as the respondent had turned down all requests of the petitioner to that effect”.
“(VII) The respondent has been living apart from the petitioner for a continuous period of 3 years, immediately preceding the presentation of this petition”.
Paragraph 10 of the respondent’s Answer-
“VI. Joshua Olusegun Omotunde has only visited Nigeria once since he left in 1988 and during which period he stayed for a period of ten days with the respondent at Eric Moore Towers Block B, Flat 12, Surulere, Lagos and at the respondent’s mother’s country home at Iddo-Ekiti”.
Paragraph 2 of the reply to the respondent’s answer.-
The petitioner further to paragraph 1 above avers that since he left Nigeria for United States in June, 1993 – he has since been living apart from the respondent.
The foregoing clearly shows that the parties have been living apart for a period of three years.
The question which arises is whether the Matrimonial Causes Act admits for admission whereupon the petitioner can obtain judgment without calling evidence in support of his case before the court.
Section 15(2)(1) of the Matrimonial Cause Act states that the court hearing a petition for a decree of dissolution of a marriage shall hold the marriage to have broken down irretrievably if, but only if, the petitioner satisfies the court of one or more of the following facts:-
(f) 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.
The standard of proof in matrimonial matters is as embodied in section 82(1) of the Act which reads that:-
For the purposes of this Act: a matter shall be taken to be proved if it is established to the reasonable satisfaction of the court’.
In my view, what is reasonable satisfaction of court is difficult to define. There is no kind of blanket description for same either – but it must depend on the exercise of judicial powers and discretion of an individual Judge. It however entails adducing all available evidence in support of an assertion before the court. By section 15(2)(1) of the Act: a court hearing a petition for the dissolution of a marriage shall hold the marriage to have broken down irretrievably if the parties to the marriage lived apart for a continuous period of three years immediately preceding the presentation of the petition. The law is that the provision is mandatory and the court has no discretion to exercise.
The section has the factor of absence of fault element characteristic of other matrimonial offences-the law behind the section that is 15(2)(1)as far as the living apart is concerned is not interested in right or wrong or guilt or innocence of the parties. Once the parties have lived apart, the court is bound to grant a Decree. The pleadings pointed at living apart of the parties. The Court of Appeal cannot entertain this application as re-listing can only be implemented at the High Court where the petition was struck out – until the case is revived, and original jurisdiction is exercised at the High and appeal lodged against any steps taken in the proceedings this court has no judicial power to exercise. This court has no original jurisdiction to exercise in divorce matters. There is application to restore the petition on the cause list of the High Court. It amounts to jumping the gun or an abuse of court process to request this court to grant a Decree nisi at this stage. That application is refused. This appeal succeeds in part. Suit No. 1/271/98 is to be listed and assigned to another Judge of Oyo State High Court Ibadan Division for determination on merit. No order as to costs.
Other Citations: (2000)LCN/0925(CA)
