Dr. Roy Pedro Ugo V. Augustina Chinyelu Ugo (2017)
LAWGLOBAL HUB Lead Judgment Report
EJEMBI EKO, J.S.C.
The parties herein were Nigerian Citizens of Igbo extraction of Imo State of Nigeria. They voluntarily renounced Nigerian citizenship and acquired the citizenship of the United States of America (USA), and later got married under the American Law. They were domiciled in the USA at all material times. It appears, and there is evidence establishing, that they have not renounced their American Citizenship. They were, at all material times to the proceedings the subject of this appeal, American citizens.
In 2002 the Appellant had approached the Supreme Court of the State of New York County of Bronx for dissolution of his marriage to the Respondent herein. He had in the petition asked for other ancillary orders regarding the sharing of the properties they had in common. The ground for the divorce at the New York Court was abandonment. The Supreme Court of the State of New York dismissed the petition, stating in its judgment, thus:
“Upon the foregoing and after a trial being held in this matter on May 30, 2002, this National Proceeding
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is hereby dismissed in its entirety. The Court finds that the Plaintiff, Roy Ugo. failed to establish a cause of action for abandonment pursuant to D.R.L, Section 170(2) as alleged in his Amended verified complaint sworn to on March 7, 2002 and entered with Bronx County Clerk’s office on March 18, 2002. This shall constitute the decision and Order of the Court.”
The Appellant, as the petitioner, did not appeal this decision of the Supreme Court of the State of New York. The said decision still subsists and remains binding on the parties thereto. The Appellant thereafter relocated to Nigeria. He later filed a divorce petition at the Upper Area Court, for the dissolution of his marriage to his wife, an American citizen, residing in the U.S.A. He obtained the divorce. The divorce as, however, annulled by the Upper Area Court, Bwari, upon the particulars of fraud being made known to that Court. It was ludicrous that an Upper Area Court was exercising Jurisdiction or submitting an American citizen residing in the USA to its jurisdiction.
The Appellant thereafter brought before the High Court
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of the Federal Capital Territory petition for the dissolution of his marriage with the Respondent and sought, inter alia,
“a. A decree of dissolution of marriage on the ground that the parties have lived apart for a continuous period of over 3 years immediately preceding this petition and that since the marriage the Respondent has behaved in such a way that the petition could not be reasonably expected to live with the Respondent. and therefore the marriage has broken down irretrievably.”
The Appellant had also averred in the petition and given particulars of the previous proceedings as follows –
“Action for a divorce filed by the Petitioner against the Respondent the Supreme Court of the State of New York, County of Bronx dated March 5, 2001 on grounds of –
(a) Irreconcilable differences between the parties:
(b) Abandonment of the Petitioner by the Respondent for 1 year.
No Order was made but reconciliation was encouraged. Since then the parties have not cohabited”.
The Supreme Court of the State of New York had found
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conclusively as a fact that the Appellant “failed to establish his cause of action for abandonment” which included “irreconcilable differences between the parties”, which in substance also includes the fact that “the Respondent has behaved in such a way that the petitioner could not be reasonably expected to live with the Respondent”. That was the basis for the assertion that “the marriage has broken down irretrievably”. In substance the cause of action for the divorce either for abandonment, or the fact that the “parties lived apart for a continuous period of over 3 years preceding the petition”, is the fact of the intolerable behaviour of the Respondent alleged by the Appellant. The divorce proceedings in the Supreme Court of the State of New York, and the instant brought up at the High Court of the Federal Capital Territory (FCT) seem to have the same substratum or issues between the same parties.
The proceedings at the High Court of the FCT (Coram: T.N. Orji-Abadua, J., as she then was) for the decree for the dissolution of the Appellant Marriage to the Respondent commenced after an Order for substituted service of the
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Petition on the Respondent, who then fully resided and was domiciled in the State of New York, USA. The Appellant testified as the PW.1 on 27th July, 2005. The Respondent retained one Ifeanyi Akubo, Ese as her counsel. The PW.1 was cross-examined by the said counsel. However, upon a change of counsel by the Respondent; the new counsel C, Okonkwo. Esq., filed a motion wherein he raised preliminary objection to the competence of the petition on grounds that the trial High Court had no jurisdiction. Respondent’s counsel raised issues of citizenship, domicile, and abuse of Court process, estoppel and bigamy for the preliminary objection. The trial Court took full arguments on the preliminary objection. In the Ruling delivered on 19th June, 2006 on the objection, the trial Court dismissed it.
The Respondent herein, aggrieved, filed notice of appeal on 28th June, 2006, at the Court of Appeal against the decision of the trial Court and raised a total of Five (5) grounds of appeal (at pages 155-158 of the Records).
At the Court of Appeal the Appellant herein, as the respondent, in that appeal by way of preliminary objection,
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urged the Court of Appeal-
“to dismiss the appeal – on the ground that all the grounds of appeal and particulars of errors numbered I-V in law Notice of Appeal – contained facts or mixed law and facts and the appeal being an interlocutory appeal from the High Court to the Court of Appeal, the Respondent/Appellant is mandated or enjoined by Section 242 (1) of the 1999 Constitution – to seek leave and obtain the leave of either the High Court or the Court of Appeal before she could argue any ground(s) of appeal containing facts or mixed law and facts. See the case of UNION BANK OF NIGERIA PLC. v. OLUSOJI SOGUNRO & 2 ORS. (2006) 27 NSCQR 182. See also NWADIKE & ORS. v. IBEKWE (1987) 4 NWLR (pt.67) 718 at 721”.
The objection was unanimously overruled by the three eminent justices of the Court of Appeal (Coram: O.O, Adekeye, M.U. Peter-Odili and Abdu Aboki, J.C.A). The appeal, on the merits, was allowed and the decision of the trial High Court was “set aside in that, that Court lacked the necessary jurisdiction to adjudicate in this suit”. This further appeal is against the decision of the
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Court of Appeal delivered on 23rd October, 2007. The Notice of Appeal has two grounds of appeal, which shorn of their particulars are –
“1. The Court of Appeal erred in law when it held that the ruling of the High Court of the FCT, Abuja dated 19th June, 2006 was a final judgment and therefore required no leave to be appealed against.
- The Court of Appeal mis-directed itself in law and fact when it held that the decision of the Supreme Court of the State of New York dated 30th May, 2002 operated as issue estoppel and therefore ousted the jurisdiction of the High Court of [the FCT].”
The two issues for the determination of this appeal were formulated strictly in terms of the two grounds of appeal as above.
The two grounds of appeal, reproduced above, raised no complaint that grounds l-V as contained in Notice of Appeal dated 28th June, 2006 violated Order 3 Rule 2(2) of the Court of Appeal Rules: 2002 (as amended) in that the particulars of misdirection or errors of law are not stated therein”. This complaint, in the Appellant’s Brief of Argument in paragraph 1.2 thereof, is, therefore quite
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extraneous to the two grounds of appeal. It is accordingly discountenanced; Grounds of appeal have a fundamental purpose of audi alteram partem. The whole purpose of grounds of appeal is to give notice to the other side of the complaint or case he is going to meet and address at the appellate Court. See NIPC LTD. v. THOMPSON ORGANISATION (1969) ALL NLR 134. That is why, and to avoid ambush, surprise and embarrassment the appellant caged and circumscribed by his grounds of appeal, is not allowed to go beyond his grounds of appeal to argue or raise issues for the determination of the appeal that are outside or alien to the grounds of appeal.
The unanimous decision of the Court of Appeal that has prompted this appeal was premised on two findings contained in the Lead judgment of Mary U. Peter-Odili, J.C.A (as she then was). That is –
- That the Respondent herein – as the appellant at the Court below, needed no leave to file and argue the grounds of appeal at the Court below. [See page 206 of the Records}; and
- That the judgment of the Supreme Court of the State of
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New York was a final judgment which decided the rights of the parties with the necessary evidence, including the documentary properly canvassed; that the petitioner (now the Appellant) was clearly not satisfied with the judgment but did nothing at the appropriate forum on appeal, and that it was no longer possible for the Petitioner (the Appellant herein) to re-litigate on the same cause and issues by this fresh action in the FCT High Court. [See page 220 of the Records}.
The Court of Appeal (hereinafter called “the Court below)” gave a further reason at page 220 of the Records, for allowing the appeal. That is –
“That petitioner (Respondent/Appellant herein) lost his chance which he cannot pick at his convenience on this international [forum} shopping spree from a Court suitable to him”.
Adding her voice to strengthen this point. Adekeye, J.C.A (as she then was) in the concurring judgment stated-
“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
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husband and not by his residence. By operation of law, a married woman on marriage takes on the domicile of her husband. If the 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”.
The Appellant has not appealed the adverse finding that, by coming to Nigeria to take up the divorce proceeding even though both himself and the respondent in the petition were domiciled in the USA, he was guilty not only of “international (forum) shopping” which is an aspect abuse of Court process, but also that he had come to the Nigerian Court that was without jurisdiction. It is trite that a decision of the Court not appealed against is deemed acceptable to the party against whom it was entered and therefore binding. See IYOHO v. EFFIONG (2007) 4 SC. (pt.111) 90, (2007) 11 NWLR (pt.1044) 31, (2007) 8 SCM 21; BIARIKO & ORS. v. EDEH OGWUILE (2001) 4 SC (pt.11) 96; (2001) 12 NWLR (pt.726) 235, (2001)7 SCM, 65.
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This aspect of the judgment of the Court below therefore remains binding and conclusive between the parties.
On issue 1, the Appellant’ s Counsel argues inter alia that a proper evaluation of the grounds of appeal and their particulars, and the issues therefrom reveals complaints about estoppel per rem judicatam and abuse of Court process; and that they cannot be determined without the factual situations on which they are hinged. Counsel argues further, on authority of OSHODI & ORS. v. EYIFUNMI (2000) 3NSCQR’320; (2000) 13 NWLR (pt.684) 298; (2000) 7 sc. (pt.11) 145; and OKUKUJE v. AKWIDO (2001)-5 NSCQR 204, (2001) 2 SCM, 113 that estoppel per rem judicatam is a question of facts. These arguments have been put forward to bolster the Appellants contention that the grounds of appeal on which the Respondent successfully prosecuted her appeal at the Court below were each, on mixed law and facts.
I agree with the Appellant that a proper evaluation of the Respondent’s grounds of appeal at the Court below reveals complaints of estoppel per rem judicatam and abuse of Court’s process against the Appellant. They
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touch on the jurisdiction of the trial Court and the competence of the suit he had brought against the Respondent. Accordingly, they cannot be said to be issues of mixed law and facts in respect of which the Respondent needed to seek and obtain leave to enable him bring forth her appeal at the Court below. The issue of estoppel per rem judicatam is one of law alone. It is not one of mixed law and facts. It is a jurisdictional issue.
In OSHODI v. EYIFUNMI (supra) this Court held that the plea of res judicatam operates not only against the parties but also against the jurisdiction of the Court itself and robs the Court of its jurisdiction to entertain the same cause of action on the same issues previously determined by a Court of competent jurisdiction; that parties affected are estopped per rem judicatam from bringing a fresh action before any Court on the same cause and on the same issues already pronounced upon by a Court in a previous action. See also OYELAKlN BALOGUN v. ADEDOSU ADEJOBI (1995)2 NWLR (pt.376)131.
Abuse of Court’s process, admittedly, was one of the
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issues raised in the Respondent’s grounds of appeal at the Court below. It is an issue of law and it is closely related, in the circumstances of this case, to the issue of estoppel per rem judicatam. For instance, as it was held in YAR’ADUA & ORS. v. ATIKU ABUBAKAR & ANOR. (2008) 15 NWLR (pt.1120) 236, (2008)12 SCM (Pt2), 662 by the full Court of this Court, it is an abuse of Court process for a party to re-litigate an identical issue which had been decided against him by a Court of competent jurisdiction. Abuse of Court’s process simply connotes the misuse of the Court’s process to invoke the jurisdiction of Court. It includes the act of a litigant, like the Appellant herein, embarking on a frolic of forum-shopping. That is, by his seeking for a friendly and favourable Court to entertain his matter. See DINGYADI v. INEC NO.1 (2010) 18 NWLR (pt.154) SC, (2010)9 SCM, 1.
My Lords, the law is now settled that by virtue of Section 241(1)(b) of the 1999 Constitution, a decision of the High Court, whether final or interlocutory, is appealable as of right and without leave of Court first sought and obtained.
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See ATTAMAH v. ANGLICAN BISHOP OF THE NIGER & ORS. (1999) 9 SC. 37; (1999) NWLR (pt.633) 6; MADUABUCHUKWU v. MADUABUCHUKWU (2006) ALL FWLR (pt.318) 695; (2006) 10 NWLR (pt.989) 475; SHUAIB v. ULTIMATE PETROLEUM LTD. (2008) 7 NWLR (pt.1086) 274. This settles issue No.1 in this appeal, which I hereby resolve against the Appellant.
The learned counsel for the Appellant has, on the Appellant’s issue 2, submitted on authority of UMEANO ACHIAKPA & ORS. v. JOSIAH NDUKA & ORS. (2001) 9 MJCS 137, (2001) 11 SCM, 16 and OSHODI & ORS. v. EYIFUNMI (supra) that for a plea of either issue estoppel or estoppel per rem judicatam to be sustained five conditions, to wit –
i. The parties and/or their privies must be the same;
ii. Issue(s) in both the previous and the present cases must be the same;
iii. The decision in the previous case must be valid, subsisting and final;
iv: The res or the subject matter in the two cases are the same;
v. The Court that gave or rendered the previous decision must be competent”.
The learned counsel for the Appellant emphatically
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states in paragraph 2.1 of the Appellant’s Brief “that as regards the 1st, 4th & 5th conditions there is no dispute as to the facts”. Therefore, the issue in this appeal has been narrowed to whether the issue(s) in both the previous and present cases are the same, and whether the decision in the previous case (i.e. the decision of the Supreme Court of the State of New York) is valid, subsisting and final
Apart from the bare statement that “there is no subsisting and valid decision of the Supreme Court of the State of New York on the reliefs sought by the Appellant at the High Court FCT, Abuja on the following issues; viz: 1. The developed property at Ihite, Owerri; 2. The developed Land/House at Abuja; 3. The underdeveloped land at lhite, Owerri; 4. Property known as 3023 Laconia Avenue, Bronx, NY 10469 USA; the learned Appellant’s counsel makes no further and tangible effort to substantiate the submission. In our jurisprudence, counsel’s bare statement from the Bar has no force of evidence. The address or submissions of counsel contained in written brief of argument are
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not legal evidence nor are they intended to be. The basic rule is: he who asserts must prove that the facts he asserts exist. Where the appellant alleges a miscarriage of justice, the burden rests on him to establish the miscarriage of justice. In the event of his failure to so establish the appellate Court will not intervene to set aside the judgment he appeals against. See SAVANNAH BANK OF NIG LTD. v. STARITE INDUSTRIES OVERSEAS CORPORATION (2009) 2-3 SC 8; (2009) 8 NWLR (pt.1144) 491, (2009) 4 SCM, 208.
I do not think, upon my perusing the Appellant’s Brief and the other processes in the appeal, that the Appellant is really contending that the judgment of the Supreme Court of the State of New York does not subsist, or that it is invalid. There is no evidence that the Appellant made any effort to appeal the said judgment. He made no effort to have it set aside. Section 168(1) of the Evidence Act, 2011 emboldens me to presume the validity of the said Judgment of the Supreme Court of the State of New York. Until this said decision of the Supreme Court of the State of New York is shown to have been set aside the
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presumption is that it remains valid and subsisting.
At the risk of repetition, a decision of the Court not appealed or challenged is deemed to be acceptable to and binding on the parties. See IYOHO v. EFFIONG (supra); BIARIKO v. OGWUILE (supra). Among other things, the Appellant, as the Petitioner at the said the New York Court, sought orders-
“That the Defendant (the Respondent herein) may resume use of her maiden name, Maduakor, or any other former surname. That the marital property be equitably distributed.”
However, in the petition for dissolution of his marriage with the Respondent at the High Court of the FCT, Abuja, the Appellant was more specific about how the marital property should be “equitably distributed” or shared. In paragraphs 14 and 15 of the said Petition, the subject of this appeal, it is averred-
ORDERS SOUGHT
“14. During subsistence of the marriage, Petitioner and Respondent acquired property at 3023 Laconia Avenue Bronx, New York 10469 USA and have retirement benefits outstanding and payable by the City of New York, USA.
- The Petitioner seeks the following orders
a. __
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An Order that the Petitioner be allowed to keep the house built on his family land at Ihite Owerri.
c. An Order that Respondent be allowed to keep the property at GRA, Kuje, FCT, Abuja.
d. An Order that the piece of land (undeveloped) at Ihite Owerri be kept for Nebolisa Roy Ugo (Jnr.)
e. An Order that the distribution and settlement of the estate and benefit in paragraph 14 be reserved for the Supreme Court of the City of New York, USA.
f Any other orders or further orders that this Honourable Court may deem fit to make in the circumstances of this case.”The dismissal, on merits, of the entire Petition for divorce by the Supreme Court of the State of New York, USA also affected the prayer of the Appellant, as the Petitioner in that Court, “that the marital property be equitably distributed”. That prayer was consequentially dismissed as well. I find no difference between that prayer and the prayer contained in paragraph 15(a) – (f) of the Petition, the subject of this appeal. Accordingly, I dismiss the submission in paragraph 2.3 of the Appellant’s Brief that
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“there are no subsisting decisions in respect of the issues the Appellant has requested the High Court of the FCT, Abuja to pronounce on in paragraph 15 of his petition”.
The authoritative decision of the Supreme Court of the State of New York on the issues in paragraph 15 of the petition, the subject of the appeal, is valid and still subsists.
The Appellant has not convinced me that the issues in the previous divorce petition dismissed in its entirety by the Supreme Court of the State of New York, and the issues in the divorce Petition before the High Court of the FCT, Abuja, are not substantially the same. He has also not convinced me that the decision of the Supreme Court of the State of New York is not final, valid and subsisting. In nutshell, the Appellant has not discharged the burden on him to establish that the judgment of the Court below, that he had appealed, was delivered in error, or was erroneous. Issue 2, accordingly, should be and is accordingly resolved against the Appellant.
Having resolved the two issues against the Appellant; I find no merits in this appeal. It is hereby dismissed in its entirety.
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The decision of the Court below delivered on 23rd October, 2007 in the Appeal No. CA/A/110/2007 is hereby affirmed. Parties shall bear their respective costs.
SC.58/2008