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CaseLaw

Ugo V. Ugo (2017) CLR 4(k) (SC)

Judgement delivered on April 28th 2017

Brief

  • Estoppel per rem judicatam and Abuse of process – Whether they are issues of mixed law and facts
  • Ground of Appeal – Purpose of
  • Findings not appealed against – Effect of
  • Miscarriage of Justice – Burden of proof of
  • Upper Area Court – Whether can exercise jurisdiction over American citizen residing in the USA
  • Foreign Judgement – Subsistence of till set aside
  • Section 168(1) of the Evidence Act, 2011
  • Section 242 (1) of the 1999 Constitution
  • Section 241(1)(b) of the 1999 Constitution
  • Order 3 Rule 2(2) of the Court of Appeal Rules: 2002 (as amended)

Facts

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 (U.S.A.), and later got married under the American Law. They were domiciled in the U.S.A. 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 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 U.S.A. to its jurisdiction.

The Appellant thereafter brought before the High Court 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 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 (F.C.T.) seem to have the same substratum or issues between the same parties.

      The proceedings at the High Court of the F.C.T. (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 Petition on the Respondent, who then fully resided and was domiciled in the State of New York, U.S.A. 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, 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 Court of Appeal.

Issues

Whether the Court of Appeal was right in holding as it did that the...

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