Mr. Romanus Asimonye V. Mrs. Adora Asimonye (Nee Aniebue) (2009)
LawGlobal-Hub Lead Judgment Report
SIDI DAUDA BAGE, J.C.A
This is an appeal against the ruling/order of the High court of Justice, Enugu State (hereinafter referred to as “The lower Court”) delivered on 27th day of June 2003 by Umezulike J, wherein he assumed jurisdiction, heard and determined the application for Ancillary Relief. Aggrieved by the decision of the lower court supra, the appellant appealed to this court.
The facts of the case which gave rise to this appeal are briefly summarized here under. The Respondent in the above appeal (as Appellant) instituted the substantive Suit against the appellant (as Respondent) at the High Court of Enugu State (sitting at Enugu) per motion on Notice dated and filed on 5-3-2002 claiming custody of the three children of the marriage between the parties all of whom had been with the Appellant since the Respondent left the matrimonial home in April 1997. The said motion was filed by the Respondent along side a motion Ex-parte for interim order of custody dated 4-3-2002, but filed 5-3-2002, which said application the lower court duly granted per its order(s) dated 6-3-2002. In addition to the main affidavit in Support of the motion on notice, the Respondent field a further affidavit dated 19-3-2002 and a 2nd Affidavit in support of Application dated 26-3-2003. The appellant contested the Suit per his Counter-affidavit filed on 15-3-2002 and further Counter-affidavit filed on 10-9-2002. In the meantime the Appellants preliminary objection to the competency is the suit and the jurisdiction of the court below to entertain same was dismissed by the court per its ruling dated 24-5-2002. The Court below duly heard the suit on the affidavit evidence by both parties and proceeded on 27-6-2003 to deliver a ruling granting the reliefs sought by the Respondent i.e. custody of the said three children namely: IFUNANY A SCHOLASTICA ASIMONYE then aged 14 years, CHIKA BENEDICT ASIMONYE then aged 13 years and OGOMEGBUNAM RODRICK ASIMONYE then aged 9 years. Being aggrieved by the said ruling, the Appellant has appealed to this Court vides a Notice of Appeal dated and filed on 14-7-2003.
NOTICE OF APPEAL
Order 3 Rules 2.
TAKE NOTICE that the Respondent/Appellant being dissatisfied with the decision/that part of the decision more particularly stated in paragraph 2 of the High Court of Enugu State contained in the ruling/order of Hon. Justice LA. Umezulike (OFR), J, dated the 27th day of June 2003 DOTH HEREBY APPEAL to the court of Appeal upon the grounds set out in paragraph 3 and will at the hearing of the appeal seek the relief set out in paragraph 4.
And the Appellant further states that the names and addresses of the persons directly affected by the appeal are those set out in paragraph 5.
(2) Part of the decision of the lower court complained of: The whole decision.
(3) GROUNDS OF APPEAL
(i) ERROR IN LAW
The Learned trial judge erred in law in assuming jurisdiction and proceeding to hear and determine the applicant/Respondents Application for Ancillary Relief in the instant proceedings notwithstanding that the said application was in competent in Law.
PARTICULARS OF ERROR IN LAW
(a) An application for ancillary relief to wit custody of children of a marriage (as in the instant proceedings) is a matrimonial cause within the meaning of Section 54 (3) and 114(1) (c) of the Matrimonial Causes Act Cap 220 LFN 1990 and other relevant provisions thereof.
(b) By the clear provision of the said Matrimonial Causes Act and the matrimonial causes Rules, proceedings for Ancillary Relief can properly be brought only as ancillary proceedings to and/or when predicated upon a concurrent, pending or completed proceedings for a principal relief as defined by the said Act and Rules.
(c) In the absence of any such proceeding for a principal relief as aforesaid, the purported originating motion in the instant proceedings was incurably bad and incompetent.
(d) A fortiori, the jurisdiction of the court below to hear and determine the said motion was not properly invoked in the circumstance and the said court was in error in proceeding to grant same per its ruling complained of.
(ii) ERROR IN LAW
The Learned trial judge erred in law in proceeding to entertain and grant the reliefs sought by the Applicant/Respondent vide the originating motion in the instant proceedings notwithstanding that the said motion was improperly constituted and incompetent.
PARTICULARS OF ERROR IN LAW
(a) The appropriate procedures for instituting a matrimonial cause within the meaning of the Matrimonial Causes Act and/or Rules are clearly set out in the relevant provisions thereof.
(b) There is no provision in the said Matrimonial Causes Act and/or Rules for instituting a matrimonial cause by originating motion as of right.
(c) The purported originating motion in the instant proceedings was brought without the prior LEAVE of court sought and obtained as required under Section 54 (3) (b) of the Matrimonial Causes Act and order III Rule 1(2) of the Matrimonial Causes Rules aforesaid.
(d) The said originating motion is in the above premise fundamentally irregular and incompetent and the court below was in grave error in entertaining and granting same as constituted.
(iii) ERROR IN LAW
The Learned trial judge erred III law in proceeding to assume jurisdiction and to grant the reliefs sought by the Applicant/Respondent in the above proceedings not withstanding the lack of proof by the Applicant/Respondent of the existence of any statutory marriage between her and Respondent/appellant.
PARTICULARS OF ERROR IN LAW
(a) The existence of a statutory marriage as defined under the marriage Act Cap 218 LFN 1990 and the Matrimonial Causes Act and/or Rules Ibid, is a sine qua non for assumption and/or exercise of jurisdiction by the court in any matrimonial cause such as the instant proceedings.
(b) The case of the applicant/Respondent was predicated on the purported existence of a statutory marriage between her and the Respondent/Appellant as per the depositions in the affidavit in support of the Application and the document annexed as “Exhibit A” thereto.
(c) No proof of such a statutory marriage was adduced in the instant case by the Applicant/Respondent particularly having regard to the Respondent/Appellant’s further Counter Affidavit dated 10-9-2002 and the Exhibits attached thereto which said averments the Applicant/Respondent failed to controvert.
(d) A fortion, Exhibit A to the Applicant/Respondent’s affidavit in support of the originating motion falls for short of the required standard of proof of a statutory marriage as established on the authorities.
(e) The Court below in the above premise lacked jurisdiction to entertain the suit which said jurisdiction is un-exercisable even by acquiescence of parties.
ERROR IN LAW
The Learned trial judge erred in Law in granting the reliefs sought by the Applicant/Respondent in the instant proceedings notwithstanding the failure by the said party to establish sufficient grounds warranting the grant of the said reliefs on the merit.
PARTICULARS OF ERROR IN LAW
a) Assuming, (but without conceding), that the originating in the instant proceedings was properly constituted and competent and the court below properly seised of jurisdiction in respect thereof, the Onus was on the Applicant/Respondent to establish entitlement to custody of the children in the circumstance of the said suit.
b) It was common ground on the affidavit evidence before the court that the applicant/Respondent had since 1977 ceased to live in the matrimonial home with the Respondent/Appellant.
c) It was also not seriously disputed that the said children had been under the custody and care of the Respondent/Appellant prior to the instant application.
d) On the affidavit evidence before the court below the Respondent/appellant seriously challenged the
Applicant/Respondent’s claim to better entitlement to custody of the said children.
e) The Respondent/Appellant having seriously controverted the material averments upon which the Applicant/Respondent’s case was predicated and having regard to the undisputed facts set out in paragraphs (b) and (c) Supra, the case of the Applicant/Respondent was totally un-established.
RELIEF SOUGHT FROM THE COURT OF APPEAL:-
To set aside the rulings of the lower court granting the Applicant/Respondents application and in lieu thereof enter a verdict dismissing the said application as completely lacking in merit.
From the grounds of appeal stated above, the Appellant formulated the following issues for the determination of this court:-
a) Whether the Respondent’s Suit was competent before the court below to warrant the exercise by the said court of its adjudicatory jurisdiction in entertaining same and granting the reliefs sought therein.
b) Assuming (but without conceding) that the answer to issue (a) above is in the affirmative, whether the Respondent duly established the existence of a valid statutory marriage between her and the Appellant to justify the assumption of jurisdiction by the court below to entertain and grant the relief(s) sought.
c) Assuming (but without conceding) that the answer to Issues (a) and (b) supra are in the affirmative whether the Respondent duly established on the totality of the evidence adduced, her entitlement to the order(s) sought on the merits as against the Appellant.
The Respondent in his brief of argument deemed filed and served on 5th June, 2006 formulated the following issues for determination in this appeal.
(i) Whether the application for ancillary relief at the court below was competent having regard to the provisions of matrimonial Causes Rules and Act.
(ii) Whether the marriage celebrated between the parties was a statutory one conferring jurisd to the court below.
(iii) Whether the Respondent made out a case upon reasonable satisfaction of the court below to be entitled to custody of the three children of the marriage had between the parties.
The Appellant argued the Issues formulated in seriatum:-
On Issue No. 1 the Appellant argued that, it is an undisputed fact that the Respondents suit at Court below was for custody of the three children of the marriage between her and the respondent which said suit was commenced by MOTION ON NOTICE. It is also not disputed that at the time of commencement of the suit and throughout the proceedings at the court below no suit on proceedings was either pending or completed or even imminent for dissolution of marriage, nullity of marriage judicial separation, restitution of conjugal rights or jactitation of marriage between the parties.
The Appellant further stated that it is trite that by the clear provisions of the Matrimonial Causes Act Cap 220 LFN 1990 and the Matrimonial Causes Rules made there under, proceedings for custody of a child or children of a marriage quality as “Anallary Proceedings” or “Proceeding for Anallary Relief as defined there under”. See Particularly Order 14 Rule 1 of the Matrimonial Causes Rules 1983, and the Blacks Law Dictionary (6th Edition p.85) definition of the word “Ancillary” And “Ancillary proceeding”
Appellant further submitted that an ancillary proceeding cannot exist without a principal proceeding. See: – N.D.I.C. V. S.B.N. Plc (2003) 1 8 NWLR (PT. 801) 311 at 422. See also section 114 (1) (c) of the Matrimonial Causes Act, Order 3 Rule 1 and Order 14 Rules 1, 2, 3, 4, 6 and 20 – 24 of the matrimonial causes Rules. Also See:- ALAMIEYSEIHA V. YEIWA (2002) 7 NWLR (PT. 767) 581 AT 603. Also See the opinion of the learned author Professor E.I. Nwogwugwu in his book entitled “FAMILY LAW IN NIGERIA, 3rd Edition Page 252 – 253.
Appellant further submitted that by the combined effect of section 54(3) (a) and (6) of the Act and Order 3 Rules I and 4 of the Rules, ancillary proceedings for custody can only competently be instated either by petition (i.e. the same petition as that by which the proceedings for principal relief or decree or declaration therein is instituted including an Answer or Cross petition) OR WITH LEAVE OF COURT, by an application made in accordance with Form 5 or 44 of the Rules.
Appellant further submitted that the instant suit having not been instituted vide a petition, Answer or cross petition, but by mere application ought to have been brought by leave of court in addition to same being in relation to a proceeding for principal relief In the absence of the requisite leave, the said suit was totally incompetent.
Appellant further submitted that the said suit being incurably bad and incompetent, the Court below was totally deprived of jurisdiction to hear and determine same. A court is only competent to assume jurisdiction to hear and determine an action where inter alia, same has been initiated by due process of law and the condition precedent to the exercise of its jurisdiction has been fulfilled. See: – Madukolu v. Nkamdilim (1962) 1 All N.L.R. 587, Ajagungbade III v Adeyelu II (2001) 16 NWLR (pt. 738) 126.
Appellant submitted the lower court acted without jurisdiction which occasioned serious miscarriage of justice. It is accordingly urged that Issue No.1 be resolved in favour of the Appellant.
The Respondent answered the Appellants contentions in Issue No. 1 of his brief of argument, with his own Issue No. 1 of his brief of argument.
The Respondent submitted that it is a common ground between the parties that the motion on notice dated 5-3-02 and shown at pages 7-12 of the Records and by which the proceedings at the court below was initiated is an application for ancillary relief.
The Respondent submitted that the phrase application for ancillary relief is nowhere defined either in the Matrimonial Causes Act or Matrimonial Causes Rules. However Order 14 Rule 1 of the Matrimonial Causes Rules deals with the definition provision. This provision is further reinforces by the provision of Order III Rule (3) of the Matrimonial Causes Rules.
The Respondent further submitted that the Appellant contended that her application for custody of the children at the court below was incompetent, as it was not predicated on a concurrent or pending or completed proceedings relative to principal relief contained in Section 114(1) (a) of the Matrimonial Causes Act. Respondent submitted that nowhere has it been shown or cited either under the matrimonial causes Act or Rules that it is a condition precedent to entertainment or initiation of relief under Section 71 of the Matrimonial Causes Act for there to be a pending or completed principal relief as defined under Section 114(1) (a) (supra).
Respondent submitted that for the court below to be stripped of or ousted of jurisdiction to entertain the application, same ought to be by express statutory legislation.
Respondent further submitted that the Matrimonial Causes Act made no specific provision on the manner and mode of realizing relief under Section 71 of the Matrimonial Causes Act. The answer can only, be found in the combined provisions of Order III Rule 1(3) and Order 14 Rule 1.
Respondent further submitted that the provisions dealing with institution of Matrimonial Causes under Section 54 of the Act being urge unto this Court by the Appellant is in applicable as it is restrictive and designed to cover matrimonial causes pending or completed before the enactment of the Matrimonial Causes Act, and is not intended to cover cases as in the instant matter.
Respondent finally urge the court to resolve this issue in her favour and hold that the application for ancillary relief at the court below was competent having regard to Matrimonial Causes Act and Rules.
The Appellant in his reply brief responded to Issue No. 1 of the Respondents brief and maintained that, the interpretation given to the provisions of section 11491) (c) of the Matrimonial Causes Act by Respondents counsel at page 5 of his brief, it is submitted that the said interpretation is completely somersaulted and wrong. It is completely wrong for Respondents counsel, to suggest by any argument that the said section applies only to matrimonial causes pending or completed before the enactment of the Matrimonial Causes Act. It is submitted that the pertinent portion of the said provision in very plain language, clearly refers to and cover matrimonial causes commenced under the Act, “including proceedings of such a kind pending at or completed before the commencing of’ the Act.
This Court is urge to discountenance the said submission of the Respondent counsel on this Issue.
The Appellant in arguing Issue No. 1 of his brief of argument raised the Issue of the competency of the trial court to exercise its adjudicatory jurisdiction in entertaining and granting the reliefs sought by the Respondent before it. On essence therefore jurisdiction takes a centre stage in the determination of this Issue.
The issue of jurisdiction is already trite that once raise in any action every step must abate, until jurisdiction is determined. The Supreme Court in the case of Dapialong v. Dariye (2007) 8 NWLR (pt. 1036) 332 at 366 ratio 15, on the nature and importance of issue of jurisdiction and effect of defect in jurisdiction of Court:-
“The Issue of jurisdiction is a radical and crucial question of competence because if a court has no jurisdiction to hear and determine a case the proceedings are and remain a nullity ab-initio no matter how well conducted and brilliantly decided they might be because a defect in competence is not intrinsic, but extrinsic to the entire process of adjudication. Jurisdiction of court is therefore considered to be the nerve centre of adjudication, the blood that gives life to as action in a court of low in the very same way that blood gives life to the human being. See: Onyenucheya v. Military Administrator Imo State (1997) 1 NWLR (pt. 482) 429; Madukolu v. Nkemdilim (1962) 2 SCNLR 341; Barsoun v. Clemessy Int, (1999) 12 NWLR (pt. 632) 516 Utih v. Onoyivwe (1991) 1 NWLR (pt. 166) 402 – 403 paras H-C”.
The main crux of the Appellant’s contention on the Issue of jurisdiction is that this action, the subject of this appeal, was commenced by a motion on Notice by the Respondent at the Court below. At the time when the motion was argued and determined no Suit or proceeding was either pending or completed or even commencement for dissolution of marriage nullity of marriage, judicial separation restitution of conjugal rights or jactitation of marriage between the parties. It is trite that by clear provisions of Matrimonial Causes Act Cap 220 LFN 1990 and the Matrimonial Causes Rules there under, proceedings for custody of a child or children of a marriage quality as “ancillary proceedings” or “Proceeding for Ancillary Relief’ which cannot be maintained without an existing pending action which will also serve as sine quonon to the court assuming jurisdiction on the action.
The Respondent in reply to the Appellants contention above on the lack of jurisdiction by the trial court maintained that the argument proffered is misplaced. The Respondent cited the clear provisions of Section 71 of the Matrimonial Causes Act and Order 3 Rule 1 (3) and Order 14 of the Matrimonial Causes Rules which clearly confers the trial court such jurisdiction to entertain an application in the form of a motion on notice, whether there is, or not, a pending, or existing principal action, for dissolution of marriage under the Act. This argument is in line with the ruling delivered on the 27-6-03 by Umezulike (OFR) J, of the High Court of Enugu, Enugu State, which is the subject of this appeal. At page 4 of the ruling, last paragraph the learned trial judge said:-
“Even if I am remiss in the above evaluation I am as well satisfied that upon my analysis of the matrimonial Causes Act and Matrimonial Causes Rules the present application is clearly warranted under section 71 of the matrimonial Causes Act and Order 3 Rule 1 (3) and Order 14 of the Matrimonial Rules, Specifically Order 14 Rule 1 of the matrimonial Causes Rules Cap. 220 enacts as follows:
“In this Order, unless the contrary intention appears application for Ancillary Relief’ In relation to proceeding for ancillary relief means:-
(a) If the proceedings for ancillary relief are instituted by petition, that petition;
(b) If the proceedings for ancillary relief are instituted by an answer to a petition, that answer, or
(c) If the proceeding for ancillary relief are instituted by application to a court, the affidavit in support of that application.
That clear words of the above provision show that an application for ancillary relief could be made to this court by ordinary application as in this case supported as it were, with an affidavit. It seems to me therefore that the application afoot is competent, and I so hold”.
I agree with the trial judge in his interpretation of Order 14 Rule 1 (c) which is clear and Unambiguous that proceeding for ancillary relief can be instituted by application (Motion on Notice) supported with an affidavit.
The application of the Respondent in the opinion of this court was proper before the lower court. I wish however to mention for the purposes of emphasis what the Supreme Court said in Amalgamated Trustees Limited v. Associated Discount House Limited (2007) 15 NWLR (pt. 1056) 118 at 134 ratio 10 on construction of clear and unambiguous words in a statute.
“In the construction or interpretation of the constitution or a statute, where the words are plain clear and unambiguous effect should be given to them in their ordinary and natural meaning except where to do so will result in absurdity. In other words, where an interpretation will result in defeating the object of the statute or constitution the court would not lend its weight to such interpretation. The language of the statute or constitution must not be stretched to defeat the aim of the statute or constitution. Thus; any interpretation which appears to defeat the intention of the legislature, should, and must, be bye-passed in favour of that which would further the object of the statute or constitution. A certain amount of common sense must be applied in construing statutes and the constitution, and the object of an Act (statute) has to be considered. In other words, the words of the Act of parliament must be construed so as to give a sensible meaning to them. The words ought to be construed ut res magis valent quam pereat. The latin maxim, means that the construction should ensure that the intention of the legislature is not frustrated or defected. See:- Lawal v. G.B. Olivant (Nig.) Ltd. (1972) 3 SC 124: Torwla v. Williams (1982) 7 SC 27; Sunmonu v. Oladokun (1996) 8 NWLR (pt. 467) 387; Nnoye v. Anyichie (2005) 2 NWLR (pt. 910) 623; Ansaldo (Nig.) Ltd v. National Provident Fund Management Board (1991) 2 NWLR (pt. 174) 392; Idehen v. Ideben (1996) 6 NWLR (pt. 198) 382; Olowu v. Abolore (1993) 5 NWLR (pt. 293) 255.
In view of the above therefore the lower court was right in its interpretation of Order 14 Rule 1 (c) and it was also right to have assumed jurisdiction on the notice on Notice filed by the Respondent before it. Issue 1 is hereby resolved in favour of the Respondent.
Since this court has resolved Issue 1 in favour of the Respondent, that the lower court was right to have assumed jurisdiction on the application brought before it by way of a motion on notice, by the clear provision of Order 14 Rule 1 (c) of the Matrimonial Causes Rules, the Issue No.2 in the brief of argument of the appellant, on the Existence of a valid statutory marriage between the Appellant and Respondent to justify the assumption of jurisdiction by the court below to entertain and grant the relief(s) sought becomes superfluous, and merely academic. Issue No. 2 resolved in favour of the Respondent.
On Issue No.3 whether the Respondent duly established on the totality of the evidence adduced, her entitlement to the Order(s) sought at the court below on the merits. This court will be quick to point out that, the Respondents application at the lower court was made by way of a Motion on Notice. The grant or refusal of such an application, which is interlocutory in nature, is discretional on the part of the court. It is trite that the exercise of such discretionary power by the court must be made both judicially and judiciously. See: – Okon Bassey Ebe v. Commissioner of Police Vol 33 SCQLR (2008) 110 at 112 ratio 1 on the Exercise of Discretion by a Court. The Supreme Court held:
“This court has said that for a judicial discretion to be properly exercised, it must be founded upon the facts and circumstances presented to the court from which the court must draw a conclusion governed by law and nothing else. The exercise of that discretion must be honest and in the spirit of the statute, otherwise, any act so done will not find a solace in the statute and such a discretionary act must be set aside. See: – Unilag & Ors v. Olaniyan & Ors (1985) 1 SC 2 95. It therefore follows that where a judicial discretion has been exercised bonafide Uninfluenced by any irrelevant considerations and not arbitrarily or illegally, the general rule is that an appellate court, the like of this court, will not ordinarily interfere”.
After a careful perusal of all arguments proffered by the Appellant in respect of the exercise of the its discretion by the lower court, and the Response put by the Respondent, this court did not find any reason to interfere with the exercise of the discretion by the lower court, in granting the relief(s) sought by the Respondent before it. Issue No.3 resolved in favour of the Respondent.
All three issues having been resolved in favour of the Respondent, the appeal fails and is dismissed and the ruling of Umezulike (OFR) J, of the High Court of Enugu State in Suit No. E/12D/2002 delivered on the 27th of June 2003 is hereby accordingly upheld 2003.
There shall be no order as to cost.
Other Citations: (2009)LCN/3263(CA)
