Pauline Chinelo Okwuosa V. Emmanuel Azubuobi Okwuosa (1974)

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ELIAS, C.J.N. 

This is an appeal from the judgment of Egbuna, J., in the High Court at Onitsha in which he granted the wife, petitioner, against her husband respondent her prayers for dissolution of marriage, custody of the only child of the marriage and maintenance for both herself and the child.

The case originated in the so called “High Court of the Republic of Biafra” to which the wife presented a petition dated June 15, 1967 in consequence of which the court on September 18, 1967 granted an alimony of 320 per month pending the hearing of the suit; the court also made the payment retrospective and affective from June 16, 1967.

The respondent, however, defaulted after making two payments to the petitioner and the Judge on December 8, 1969, purported to adjourn the subsequent petition complaining about the failure to pay the alimony till January 29 and 30, 1970. The Civil War, however, ended on or about January 15, 1970, thereby leaving the proceedings pending in the High Court of the illegal regime on that date when lawful authority was re-established over the whole geographical area of the East Central State.

On March 15, 1971, the petitioner purported to take out summons for an amendment under Rule 15(1)(b) of the Matrimonial Causes Rules 1967 and Section 98(2) Matrimonial Causes Decree 1970 seeking leave of the court to amend her petition originally filed in the High Court of the illegal regime, and asking for a number of amendments to be made therein. On March 22, 1971, Egbuna, J., granted the order as prayed, and ordered the amended petition to be filed and served on the respondent. The case was duly heard by the Judge who, on July 7, 1971, purported to grant the prayer for dissolution of the marriage on the ground of cruelty and also the sum of 385 per month to be paid to her for her maintenance and that of the only child of the marriage who is living with the petitioner; the 385 was to supersede the 320 interim alimony with effect from the date when the decree nisi should be made absolute.

The present appeal is against that decision. The respondent/appellant asked leave to file 4 grounds of appeal in substitution for the 7 originally filed by him, and was granted leave to argue them. It is necessary to reproduce here the first and only ground argued before us, as follows:

“The proceedings are a nullity because the petition was not presented to the High Court of any territory in Nigeria but to the High Court of “Biafra” on 15/6/67, and the High Court of East Central State has no power to take cognizance of such petition much less to amend and hear it particularly as the said petition was verified before a person who was not a commissioner for oaths and the Registrar’s Certificate was issued by a person who was not a Registrar in the con of the laws of Nigeria.”

Mr. Nwobosi, learned counsel for the respondent, filed a notice of preliminary objection under Order VII, Rule 14 of the Supreme Court Rules, on the following grounds:

“1.    That this Honourable Court had no Jurisdiction to entertain the present appeal in that the petition was not presented to the High Court of any territory in Nigeria but to the High Court of “Biafra” on 15th June, 1967.

2.     That this Honourable Court has no jurisdiction to entertain Appeal originating from a territory not in Nigeria, vis – the “High Court of Biafra”.

Learned counsel submitted that, since the petition was not presented to the High Court of any “territory” in Nigeria but to the High Court of “Biafra”, a non-existent court, on June 15, 1967, there was no appeal properly before the Supreme Court, the proceedings in the illegal regime being a nullity. We overruled his preliminary objection on the ground that the point raised by learned counsel was either premature or amounted to his saying that the judgment of the “Biafran” Court, from which the petitioner/respondent had been deriving some financial benefit, was a nullity. We considered that the appeal was properly before us because it is against the judgment of the Onitsha High Court as established and re-constituted since the end of The Civil War in January 1970. The preliminary objection was, in our view, clearly misconceived.

Mr. Obi-Okoye, learned counsel for the appellant, thereupon argued his grounds of appeal. He submitted that the entire proceedings before the so-called High Court of “Biafra” were a nullity, the petition having been presented on June 15, 1967 in that non-existent “Republic”. On May 27, 1967, the East Central State of Nigeria came into being by virtue of Decree No. 14 of 1967, Section 3 of which created a High Court for the new State while Section 1(2)(b) named the State among the 12 new states of the Federation; the Schedule attached to the Decree included Onitsha in the East Central State but, quite naturally, not “Biafra.” Already, jurisdiction in the Matrimonial Causes was vested in the East Central State High Court by Section 4 of the States Courts (Federal Jurisdiction) Act, Cap. 177 of the Laws of the Federation of Nigeria.

It is significant to note that this case, which was started on June 15, 1967, was kept going in that illegal “Biafra, High Court until the end of the war in January, 1970. On  March 17, 1970, the Matrimonial Causes Decree, 1970  came into force. By virtue of Sections 96-98 of the Decree, pending proceedings were provided for in those cases already instituted in a proper High Court. Sections 96-98 read as follows:-

“S.96. In this Part of this Decree –
“Pending proceedings” means proceedings instituted in the High Court of a State before the date of commencement of this decree but not completed before that date
“the court”, in relation to pending proceedings, means the court in which the proceedings were instituted.

S.97. Pending proceedings constituting a Matrimonial Cause may be continued and dealt with in accordance with and by virtue of this Part of this Decree and not otherwise.
S.98. (1)   Except as provided by this Part of this Decree, the law to be applied, and the practice and procedure to be followed, in and in relation to pending proceedings, being proceedings for a decree of dissolution or nullity of marriage or of judicial separation, shall be the same as if this Decree has not been made.

(2)  Without prejudice to any power that the court has by virtue of subsection (1) above to amend or permit the amendment of a petition, the court may in any such proceedings, upon application by the petitioner and on such conditions, if any, as the court thinks fit, permit the petitioner to amend the petition so as to include a ground of relief provided by this Decree and not already included in the petition; and where such a ground is so included, then, in relation to that ground, the provisions of this Decree applicable in relation to that ground shall apply as if the proceedings had been instituted under this Decree.

(3) Notwithstanding Section 114(4) of this Decree, a reference in this Decree to the date of the petition or the date of institution of proceedings shall, in relation to a ground of relief included or sought to be included in a petition by virtue of the subsection (2) above, be read as a reference to the date on which the application for leave to amend the petition was instituted.

It is quite clear that the present High Court of Onitsha was not the very one in which the proceedings were originally commenced; the proceedings were instituted, as the records of appeal show clearly, in the so-called “High Court of Republic of Biafra”. It is also interesting to observe that Section 97 of the Decree prescribes that the pending proceedings that can be taken over by the newly re-constituted High Court must be as provided “in this Decree and not otherwise”, Reference may also be made to Section 144 of the Matrimonial Causes Decree 1970 which defines a State as meaning a State of the Federation of Nigeria; the so-called “Republic of Biafra” is not a State within the meaning of the section, nor indeed within the meaning of Decree No.14 of 1967. The conclusion is, therefore, irresistible that the Onitsha High Court, in purporting to take over the proceedings from the “Biafran  High Court, was incompetent to do so. We think that the Onitsha High Court as re-established cannot take over even from, say, an Enugu High Court, it can only take over from a  High Court at Onitsha within the Judicial Division of a State of Nigeria.

As regards the purported amendments to the petition granted by Egbuna, J., on March 22, 1971, we agree with the learned counsel for the appellant that the court had no jurisdiction to do what it purported to do. We think, for instance, that a number of the amendments such as those substituting “Nigeria” for “Biafra” in several paragraphs of the petition as well as in the title to it were clearly inappropriate; the petitioner also stated that both herself and her husband were domiciled in “Biafra”, a non-existent territorial entity, so far as the Matrimonial Causes Decree 1970 is concerned. Similarly, the verifying affidavit, which had remained unchanged, was sworn to by the petitioner who was for all practical purposes domiciled outside Nigeria, while the Commissioner for Oaths was also not a Nigerian.

Finally, the Registrar’s Certificate was that of the High Court of “Biafra” and was signed by a Registrar resident at Ihiala- a place unknown as a Judicial Division of Nigeria during the relevant period. We also find ourselves in agreement with the submission of learned counsel for the appellant that the Judicial Acts Validation Edict 1970, to the extent to which it declared in Section 3 that the decisions of the High Court of “Biafra” were to be held as valid, is not valid and has been declared invalid by the Supreme Court in some recent decisions, of which it is sufficient to refer to Ogbuagu & Ifegbu & Ors. v. Ota Ukaefi (1971) 1 ECSLR 184.

Mr. Nwobosi, learned counsel for the respondent in this appeal, agreed that the High Court of “Biafra” was a non-exstent court and that its proceedings could not be taken over under Section 97 of the Matrimonial Causes Decree, 1970. He, however, submitted that the proceedings before the Onitsha High Court should be regarded as a nullity, and that there cannot be an appeal from a non-existent court to the Supreme Court. He therefore argued that the appellant had brought the wrong action and the proper course was for him to have taken a fresh summons in the High Court of Onitsha to nullify its own judgment.

When he offered to cite an English decision showing that a High Court could, apart from an allegation that a decision had been obtained by fraud, review a previous decision of its own, we stopped him on the ground that decision must turn on an interpretation of the relevant English statute on the subject, of which there is probably no Nigerian equivalent. Unless learned counsel could refer us to a Nigerian authority, whether statute law of a judicial decision, we were not prepared to entertain his submission. Learned counsel conceded that there is no Nigerian authority of which he was aware.

We are, therefore, of the opinion that the proceedings of the Onitsha High Court in the East Central State of Nigeria in Suit No. 0/4D/1967 delivered in July, 1971 were a nullity, and that the judgment of Egbuna J., must be set aside, including the order as to costs. The appeal succeeds and it is allowed. Costs are awarded to the appellant and assessed at N70 in the court below and at N105 in this court. This shall be the judgment of the court.

SC.154/1973