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.