➥ CASE SUMMARY OF:
Augustina Chinyelu Ugo v. Dr. Roy Pedro Ugo (2007) – CA
by Branham Chima (SAL).
➥ COURT:
Court of Appeal – CA/A/110/2007
➥ JUDGEMENT DELIVERED ON:
Tuesday, the 23rd day of October, 2007
➥ AREA(S) OF LAW
Divorce
Estoppel per rem judicata
Leave to appeal
➥ PRINCIPLES OF LAW
⦿ RULES OF COURT MUST BE OBEYED
The rules of court must prima facie be obeyed. As such it is the court which can extend indulgence to a party in a case before it to depart from the rules. The courts have an inherent jurisdiction to ensure compliance by litigants with the rules of court and to strike out any process not filed in compliance with the relevant rules. See UBA Ltd v. Odusote Bookstores Ltd (1995) 9 NWLR (pt 421) 558; Onifade v. Olayiwola (1990) 7 NWLR (pt. 161) 130 at 166 – 167. — M.U. Peter-Odili, JSC.
⦿ WHERE NO LEAVE OBTAINED, ISSUES AND ARGUMENTS THEREON WILL BE STRUCK OUT
It is true that once no leave was shown to have been obtained by the Appellant before filing the grounds of appeal alleging error of facts based on evidence the said grounds together with the issues distilled therefrom and the arguments proffered thereon are liable to be struck out. See Nwadike v. Ibekwe (1987) 4 NWLR (pt. 67) 718; Ogbechie v. Onochie (1986) 2 NWLR (pt. 23) 484; Ifediorah v. Ume (1988) 2 NWLR (pt. 74) 5. — M.U. Peter-Odili, JSC.
⦿ WHAT IS AN INTERLOCUTORY APPLICATION
An interlocutory application is that application which does not decide the rights of the parties but are made for the purpose of: (a) Keeping things in status quo till the rights of the parties can be decided; (b) Obtaining some direction of the court as to how the cause of action is to be conducted; (c) Determining what is to be done in the progress of the cause of action for the purpose of enabling the court ultimately to decide upon the rights of the parties. Therefore an order of court is interlocutory when it does not deal with the final rights of the parties. — M.U. Peter-Odili, JSC.
⦿ FIVE CONDITIONS FOR ESTOPPEL PER REM JUDICATAM TO SUCCEED
I would first refer to the case of Oshodi & 2 ors v. Eyifunmi (2000) 3 NSCQR 320 at 338 – 340, 339 wherein Iguh JSC had proffered five conditions which must be present for the plea of Estoppel per rem judicatam to succeed. These are:- 1. That the parties or their privies are the same that is to say that the parties involved in both the previous and the present proceedings are the same. 2. That the claims or the issues in dispute in both the previous and present actions are the same. 3. The res, that is to say the subject matter of the litigation in the two cases is the same. 4. The decision relied upon to support the plea of Estoppel per rem judicatam must be valid subsisting and final. 5. The court that gave the previous decision relied upon to sustain the plea must be a court of competent jurisdiction. — M.U. Peter-Odili, JSC.
⦿ BASIS FOR JURISDICTION IN MATRIMONIAL CAUSES IS DOMICILE
Finally the basis of jurisdiction in matrimonial cause under the Matrimonial Causes Act, 1970 is domicile. The issue of domicile of the petitioner forms the foundation or pivot of adjudication in the petition. Jurisdiction of court to hear a divorce petition is governed by the domicile of the husband and not by his residence. By operation of law, a married woman on marriage takes on the domicile of her husband. If parties have acquired American Citizenship and have not abandoned same, their domicile of choice remains valid and, subsisting and endures until their Nigerian citizenship which is held in abeyance, and being their domicile of origin is revived. A domicile of choice is a domicile established by physical presence within a state or territory coupled with the intention to make it a home. Omotunde v. Omotunde 2001 9 NWLR pt 718 pg 252, Koku v. Koku 1999 8 NWLR pt 616 pg 672, Blojwani V Blojwani 1996 6 NWLR pt 457 pg 661. — O.O. Adekeye, JCA.
➥ LEAD JUDGEMENT DELIVERED BY:
Mary U. Peter-Odili J.C.A.
➥ APPEARANCES
⦿ FOR THE APPELLANT
M. Okonkwo.
⦿ FOR THE RESPONDENT
Mr. Mozie.
➥ CASE FACT/HISTORY
By a Notice of Petition filed on 1/3/05 together with other relevant documents, the Petitioner/Respondent in this appeal sought a decree for the dissolution of his marriage to the Respondent/Appellant in this Appeal.
By an order for substituted service, the Appellant was served in New York USA where she resides and is domiciled with the petitioner and the three children of the marriage, the petitioner as PW1 on 27/7/05 gave and concluded his evidence and was cross examined by the then counsel to the respondent, Ifeanyi Akubuo Esq.
Upon the Appellant/Respondent changing her counsel to Emmanuel C. Okonkwo Esq., a motion on notice was filed on her behalf in the court below challenging by way of preliminary objection, the lack of jurisdiction of the trial high court on points of law viz citizenship, domicile, abuse of process, estoppel and bigamy.
After full arguments by both sides the learned trial Judge delivered the Ruling on Monday 19/06/06 on the objection and dismissed it. The Appellant herein being dissatisfied with the said Ruling has appealed to this court.
➥ ISSUE(S) & RESOLUTION(S)
[PRELIMINARY OBJECTION: DISMISSED]
I. Whether or not leave is required to file the appeal?
RULING: IN RESPONDENT’S FAVOUR.
A. NO LEAVE IS REQUIRED SINCE THE DECISION AT THE TRIAL COURT IS A FINAL ONE
“In the light of the authorities cited above alongside the issue in controversy I would not hesitate in coming to the conclusion that the order by the learned trial Judge assuming jurisdiction in the Divorce Petition before her is a final decision. I say so because having settled by a final decision on the trial court’s competence and jurisdiction to entertain the Petition before that court neither party nor his privy can relitigate that issue again. See Obasi v. Merchant Co. Ltd (2005) 21 NSCQR 275 at 296. Having come to the above conclusion I would say that this appeal is competent and the Court of Appeal has jurisdiction to entertain this appeal and there was no necessity for leave to bring the appeal. Therefore this preliminary objection is dismissed.”
.
.
.
[APPEAL: ALLOWED]
I. Was the trial judge right in law in holding that the petition before the court is not a relitigation of the res in the earlier trial instituted in New York and to which Estoppel applied?
RULING: IN APPELLANT’S FAVOUR.
A. ESTOPPEL PER REM JUDICATAM APPLIES
“From the facts clearly evident in the Record of proceedings all five conditions are existing. The point which the Petitioner/Respondent is hanging on to attempt a departure from the Estoppel doctrine is that in the New York case he had cited 1 year abandonment as ground for seeking the dissolution which was in 2001, while in the High Court Abuja Nigeria it was stated that the dissolution of the same marriage was for living apart of 3 years which action was taken out in 2005 and that 1 year or 3 years are different and the ground for the relief different and so the two suits cannot be caught by Res judicata. From available records the position of the Petitioner/Respondent is akin to that of a bird without wings. A good attempt no doubt but it just cannot fly. The judgment in the New York court was a final judgment which decided the rights of the patties with the necessary evidence including the documentary properly canvassed. As can now be seen the Petitioner/Respondent is dissatisfied with that judgment but he did nothing at the appropriate forum on appeal and it is not just possible to relitigate by this fresh action in the Abuja High Court. See Obasi v. Merchant Co. Ltd (2005) 21 NSCQR 275 at 296. The Petitioner/Respondent lost his chance which he cannot pick at his convenience on this international shopping spree from a court suitable to him. The doctrine of estoppel per rem judicatam applies clearly in this instance and the learned trial Judge ought to have applied it and sustained the preliminary objection before her. On that basis alone this appeal is allowed and there is really no point going into any of the other issues since Issue No 1 has settled the appeal.”
.
.
.
✓ DECISION:
“The appeal is therefore allowed, decision of the trial High Court set aside in that, that court lacked the necessary jurisdiction to adjudicate in this suit which Petition is hereby dismissed. I order N20,000 costs to the Appellant to be paid by the Petitioner/Respondent.”
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
