Augustina Chinyelu Ugo V. Dr. Roy Pedro Ugo (2007)

LawGlobal-Hub Lead Judgment Report

MARY U. PETER-ODILI J.C.A.

This is an appeal against the Ruling of the Honourable Justice Theresa N. Orji-Abadua of the Federal Capital Territory High Court NO.7 sitting at Bwari FCT delivered on Monday 19th June 2006 wherein the learned trial Judge in the ruling on preliminary objection on points of law urging the trial court to strike out the Divorce petition filed and pending in that court by the petitioner/respondent herein dismissed the said preliminary objection.

FACTS STATED BRIEFLY

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.

NOTICE OF PRELIMINARY OBJECTION:

The Respondent to the Appeal, Dr. Roy Pedro Ugo filed a preliminary objection to the Appeal urging the court to dismiss the appeal filed by the Appellant on the ground that all the grounds of appeal and particulars of errors numbered as 1- V in the Notice of Appeal dated 28/06/06 contain facts or mixed law and facts and the appeal being an interlocutory appeal from the High Court to the Court of Appeal the Appellant is mandated or enjoined by Section 242(1) of the 1999 Constitution of the Federal Republic of Nigeria to seek and obtain the leave of either the High Court or the Court of Appeal before she could argue any ground or grounds of appeal containing facts or mixed law and facts. He cited Union Bank of Nigeria PLC v. Olusoji Segunro & 2 ors (2006) 27 NSCQR 182 Nwadike & ors v. Ibekwe (1987) 4 NWLR (pt. 67) 718 at 721.

Learned counsel for the Respondent/Applicant further stated that a careful examination would reveal that the grounds of appeal and particulars of error, reliefs sought from the Court of Appeal which are hinged on res judicata or estoppels per ram judicatam, Abuse of the Court process, domicile, fraud, bigamy, bias and issues for determination in Appellant’s brief of argument are all questions of fact which the Court of Appeal cannot decide upon without recourse to the pleadings or evidence and proceedings and judgments of previous courts. He cited Oshodi & 2 ors v. Eyifunmi (2000) 3 NSCQR 320. That in the circumstance since no leave was sought for and obtained by the Appellant either in the High Court or the Court of Appeal this appeal is incompetent.

Learned counsel went on to say that grounds I – V as contained in the Notice of Appeal dated 28/06/06 violate order 3 rule 2(2) of the Court of Appeal Rules 2002 in that the particulars of misdirection or errors in law are not stated therein. That all the grounds of appeal in I – V in the Notice of Appeal contain facts based on affidavit and oral evidence in the court below. That there are no questions of law raised therein at all and the fact of calling the misdirection or error in law does not ipso facto make them so. See Metal Construction (WA) Ltd v. Miglore & ors (1990)1 NWLR (pt. 126) 299.

Learned counsel said since no leave was sought for and obtained all the grounds of appeal and therefore the appeal should be dismissed. He referred to Major J.Z. Umoru (rtd) v. Alhaji Abubakar Zibiri & 4 ors (2003) 11 MJSC109 at 116

In response the Appellant contended through counsel that the respondent had overlooked Section 241 (a) and (b) of the 1999 Constitution which provide for appeal as of right by appellants from final decisions of the High Court sitting at first instance as in this appeal and the grounds/issues thereof. That this appeal is a final decision since the decision connotes a resolution of the issues between the parties by the court which becomes functus officio thereafter and neither of the parties can relitigate such issue before that court or indeed any other court saves by way of appeal thereof as in this instance.

Learned counsel stated on that the Appellant’s preliminary objection in the court below hinged outrightly on the jurisdiction or lack of it of the trial court to proceed with the divorce petition and so that decision by the trial high court is final as it disposed of the issues as were brought before that court completely and that court became functus officio thereby as the issues cannot thereafter be relitigated in that court or any other court save by way of appeal as is now being done. He stated further that notwithstanding that the issues were by way of preliminary objection fatal as the proceedings would amount to nothing no matter how well conducted the matter has been done and decided. Also a court is bound without more to put an end to its proceedings once it is manifest that the proceedings are incompetent thus upholding the preliminary objection for lacking in merit.

In brief the contest in this preliminary objection is that the Respondent/Applicant contends that the grounds of appeal being of mixed law and facts leave of court as enshrined in the 1999 Constitution Section 241 ought to have been asked for and obtained by the Appellant.