Joshua Omotunde V. Mrs. Yetunde Omotunde (2000)

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OLUFUNLOLA OYELOLA ADEKEYE, J.C.A. 

The substance of this appeal is the setting aside of the two rulings of the High Court of Oyo State firstly – the ruling of the court delivered on the 14th of July, 1999 – whereby the learned trial Judge refused to set aside the order of the court made on 11th of December, 1998; Secondly the ruling and order of court made on the 11th of December, 1998 which struck out the petitioner’s petition for lack of jurisdiction. The petitioner, Dr. Joshua Omotunde now appellant, instituted suit No. 1/27ID/98 at the High Court of Oyo State Ibadan Division by a petition for a decree of dissolution of his marriage to the respondent-cross petitioner – Mrs. Omotunde.

Facts which led to the instant appeal are briefly as follows:- The appellant and respondent were married under the Matrimonial Causes Act at the Marriage Registry of Ero Local Government in Ekiti State on the 22nd of March, 1986. The marriage was blessed with two children who are now living with the respondent. The appellant left Nigeria for the United States of America on the 4th of June, 1988 to work as a medical practitioner. He visited Nigeria in June, 1993 whereupon he promised to make necessary arrangements to facilitate the respondent and the children of the marriage to join him in the United States. The appellant had ever since not visited Nigeria. He makes financial provisions for the maintenance of the children of the marriage – which the respondent however considered as meagre compared with the expenses of bringing up the children by her. The appellant filed his petition, marriage certificate, the verifying affidavit signed by the appellant personally, and the appellant’s counsel’s certificate of reconciliation – vide pages 1-9 of the records. The respondent filed an answer to the petition and a cross-petition – see pages 13-20 of the record of appeal. At the hearing of the petition, before the appellant called evidence, the appellant’s counsel moved the court by oral application, praying for an order of Decree nisi having regard to the counsel’s view that both parties had admitted in their pleadings that the parties have lived apart for more than three years, without calling any evidence. The respondent’s counsel however opposed the oral application on the ground that a Decree nisi is a declaration of right – the petitioner must prove his case with or without admission and that the issue of domicile of the appellant was being challenged without taking evidence – see pages 32-34 of the records of appeal. The appellant’s counsel in his reply to the respondent’s counsel’s submission on point of law urged the court to take the facts stated in the petition and the Marriage Certificate as satisfactory proof of the appellant’s domicile of origin – vide page 35 lines 34-35 of the records. In a considered ruling delivered by the learned Judge both the petition and the cross-petition were struck out. Subsequent to the ruling, the appellant filed an application before the lower court to set aside the order striking out the petition and cross-petition on the ground that the order was a nullity having been made without jurisdiction. This application to set aside the order was heard by another Judge – who also dismissed the application to set aside the former ruling on the ground that same amounts to sitting on appeal over the judgment of his learned brother. The appellant being dissatisfied with the two rulings filed his notice of appeal. His first notice was filed within time on 16/8/99 – against the ruling of 14/7/99. The 2nd notice was filed on 31/1/2000 pursuant to the leave of court granted on 19/1/2000 – pages 49-52, and 53-57 of the records. In the notice filed on 16/8/99 – the grounds of appeal without the particulars are as follows:-

(1) The learned trial Judge misdirected himself when he failed to appreciate the essential nature of the petitioner/appellant’s motion praying the court for an order setting aside the earlier order of Court granted 11th of December, 1998 on the ground that the said order was a nullity having been made without jurisdiction and thereby occasioned a miscarriage of justice.

(2) The learned trial Judge erred in law when he held that he had no jurisdiction to grant the petitioner/appellant’s application praying the court to set aside the order of 11th December, 1998 and struck out the petitioner/appellant’s application on the ground that entertaining and/or granting same would amount to sitting on appeal on the order of a court of co-ordinate jurisdiction.

(3) The learned trial Judge erred in law by not following and applying the authoritative and binding decision of the Supreme Court in Adegoke Motors Ltd. v. Adesanya (1989) 3 NWLR (Pt.109) 250 at 273 in the determination of the petitioner/appellant’s motion before him.

(4) The learned trial Judge having held that it had no jurisdiction to entertain the Petitioner/appellant’s application erred in law by failing to consider the petitioner/appellant’s reliefs on the merit in the possible event of a higher court holding that the learned trial Judge’s view on the lack of jurisdiction to entertain the petitioner/appellant’s motion is wrong.

Five grounds of appeal were filed against the ruling delivered on the 11th of December, 1998 as follows:

(a) The learned trial Judge lacks jurisdiction to entertain the petitioner/appellant’s petition at the time he did when the issue raised by the respondent was not whether or not he had jurisdiction but that it was necessary to take evidence to decide the domicile of the petitioner.

(b) The learned trial Judge erred in law when he held as follows:-

“In the case of the Petitioner, who has been consistently domiciled in the United States of America since 1993 up to the time he filed his petition on the 21st day of April, 1998, it cannot be said of him that as at 21st April, 1998 when he was filing his petition through his learned Counsel he was domiciled in Nigeria and thereby came to a wrong conclusion.”

(c) The learned trial Judge misdirected himself in law by failing to hold that the respondent had not discharged the evidential burden on her to the effect that the petitioner/appellant had chosen and acquired any domicile for his domicile of origin – Nigeria.

(d) The learned trial Judge misdirected himself in law by equating the petitioner’s residence or working place in the United States of America since 1993 up to the time his petition was filed in 1998 – with the petitioner’s domicile and thereby occasioned miscarriage of justice.

(e) The learned trial Judge erred in law in failing to grant the appellant’s application for a Decree nisi in this petition in view of the admission of the parties in their pleadings that they have lived apart for more than three years immediately preceding the presentation of the petition.