GEORGEWILL v. GEORGEWILL
(2022)LCN/16731(CA)
In The Court Of Appeal
(PORT HARCOURT JUDICIAL DIVISION)
On Monday, February 14, 2022
CA/PH/329/2020
Before Our Lordships:
Tani Yusuf Hassan Justice of the Court of Appeal
Paul Obi Elechi Justice of the Court of Appeal
Olabode Abimbola Adegbehingbe Justice of the Court of Appeal
Between
MR. TEMPLE U. GEORGEWILL APPELANT(S)
And
MRS. CHIOMA GEORGEWILL RESPONDENT(S)
RATIO
WHETHER OR NOT A DEFECTIVE NOTICE OF APPEAL RENDERS THE ENTIRE APPEAL INCOMPETENT
It follows that the rules provides for filing of the Notice of Appeal at the registry of the Court below the decision of which is appealed against, in this case the High Court of Rivers State, Port Harcourt Division.
The Notice of Appeal is the spinal cord of an appeal. It is the most important step in the initiation of an appeal. It must be competent to enable the appellate Court assume jurisdiction in entertaining the appeal. Where it turns out to be defective and invalid, it renders the appeal incompetent and robs the appellate Court of the competence to adjudicate on the appeal. See Thor V. FCMB Ltd (2002) 2 SCNJ 85; (2002) 4 NWLR (Pt.757) 427; Uwazurike & Ors V. A-g Federation (2007) 8 NWLR (Pt.1035) 1. PER HASSAN , J.C.A.
CONDITIONS THAT MUST BE PRESENT FOR A COURT TO HAVE JURISDICTION TO ENTERTAIN A MATTER
A Court can only exercise jurisdiction when:
(a) It is properly constituted as regard number and qualification of members of the bench and no member is disqualified for one reason or the other.
(b) The subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction; and
(c) The case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction. See Madukolu V. Nkemdilim (1962) 2 SCNLR 341; Magaji V. Matari (2000)8 NWLR (Pt.670) 722 and Mawo V. Tsintuwa (2020)2 NWLR (Pt.1708) 306.
In Okpe V. Fan Milk PLC (2017) 2 NWLR (Pt.1549) 282 at 285, the Supreme Court held that an appeal is deemed to have been brought upon filing of the notice of appeal in the registry of the lower Court or the Court from which the appeal emanated. See also N.B.C. PLC V. Suleiman (2019) 18 NWLR (Pt.1703) 80 and I.B.W.A V. Pavex Int’l Co (Nig.)Ltd (2000) 7 NWLR (Pt.663) 105.
The Supreme Court also in SPDCN Ltd V. Agbara (2016) 2 NWLR (Pt.1496) 353, held that the Notice of Appeal is filed in the registry of the Court below and not in that of the appellate Court. See also Okotie V. Olughor (1995)5 SCNJ 217 and Harriman V. Harriman (1987)3 NWLR (Pt. 60) 224.
A void and invalid notice of appeal is a non-existence. It is only a valid and competent notice of appeal that activates jurisdiction of an appellate Court. A notice of appeal that is void ab initio, is invalid and incapable of activating the jurisdiction of an appellate Court. PER HASSAN , J.C.A.
THE POSITION OF LAW ON NOTICE OF APPEAL
A Notice of Appeal is the originating process in an appeal. Once it is incompetent it remains so, and the Court no longer has jurisdiction to hear the appeal. Therefore, a valid appeal can only be said to exist when there is a competent notice of appeal, which gives life to or initiates all other subsequent processes to be filed in the appeal. Any vital and substantial defect in a notice of appeal would render the appeal incompetent, invalid and therefore rob the appellate Court of the requisite jurisdiction to entertain the appeal.
Therefore the absence of competent notice of appeal contaminated the appeal from its foundation. In the circumstance, there is no valid notice of appeal to ground the appellant’s appeal. See Daniel V. INEC (2015) 9 NWLR (Pt.1463) 113; Orji V. INEC (2020) 13 LPELR 49525; Okwuosa V. Gomwalk (2017) 9 NWLR (Pt.1570) 259; Apeh V. PDP (2016) 7 NWLR (Pt.1510) 153 and S.P.D.C. V. Agbara (Supra). PER HASSAN , J.C.A.
THE POSITION OF LAW ON THE TWO TYPES OF JURISDICTION
In keeping with the direction of the provision quoted above, the Courts have, over the years, insisted that procedural jurisdiction should not be allowed to foreshadow the exercise of the appellate rights of parties in our Courts. In the case of Ajibode v. Gbadamosi [2021] 7 NWLR (Pt. 1776) 475, the Supreme Court stated that there are two types of jurisdiction – procedural and substantive. The latter is a matter of substantive law; while the former is a matter of procedural law regulating the practice and procedure guiding the manner suits are initiated, tried, etc. The distinction between the two is that substantive jurisdiction is vested in the Court by the enabling statute or the Constitution. It is not conferred by any litigant and cannot be waived by any litigant. On the other hand, a litigant may submit to the procedural jurisdiction of the Court or waive any defect in the procedural jurisdiction of Court by acquiescing in the defect. In the case cited, the Court held that it was too late in the day for the appellants to complain about any defect in the writ of summons to which they unconditionally entered appearance, filed pleadings, and called evidence, and in respect of which the trial Court gave them judgment. See A.-G., Kwara State v. Adeyemo (2017) 1 NWLR (Pt. 1546) 210; Ndayako v. Dantoro (2004) 13 NWLR (Pt. 889) 187; Heritage Bank Ltd v. Bentworth Finance (Nig.) Ltd. (2018) 9 NWLR (Pt. 1625) 420. PER ADEGBEHINGBE, J.C.A.
THE DISTINCTION BETWEEN SUBSTANTIVE AND PROCEDURAL LAW AND SUBSTANTIVE LAW
In the case of Belgore v. FRN (2021) 3 NWLR (Pt. 1764) 503, the Supreme Court insisted that there is a distinction between two types of jurisdiction viz – jurisdiction as a matter of procedural law and jurisdiction as a matter of substantive law. Whilst a litigant can waive the former, no litigant can confer jurisdiction in the Court where the Constitution or statute or any provision of the common law states a Court shall have no jurisdiction. A litigant may submit to the procedural jurisdiction of the Court, such as where a writ has been served outside jurisdiction without leave. See also Ndayako v. Dantoro (2004) 13 NWLR (Pt. 889) 187.
In the case of Bakari v. Ogundipe [2021] 5 NWLR (Pt. 1768) 1, decided that waiver is the intentional and voluntary abandonment of a right. It is either express or implied from conduct. Where a party has waived his right to insist that the correct procedure must be followed, he cannot later on appeal, resile, and complain of what he has waived. In other words, a right that has been waived is lost. The reasoning being that once the other party acts upon the waiver, the party waiving the right can no longer go back on the waiver and act as if it was never waived. It is only when objection is made at the earliest opportunity can it be said that the right was not waived.
Returning to the issue of venue of filing a notice of appeal, in the case of Poroye v. Makarfi [2018] 1 NWLR (Pt. 1599) 91 at 146-147, the Supreme Court stated:
“Furthermore, on the issue of filing of the notice of appeal at the Court below instead of the trial Court, which meant non-compliance with the rules of the Court, I am of the firm view that, that should not prevent this Court from ensuring that justice is seen to be manifestly done. The rules of Court are no doubt, meant to be obeyed by all parties concerned and at all times, including the Courts. See U.T.C (Nig.) Ltd. v. Chief Pamotei (1989) 2 NWLR (Pt. 103) 244 at 296 paras. F-G where this Court, per Belgore, JSC (as he then was, later the CJN) opined as follows:
“Rules of procedure are made for the convenience and orderly hearing of cases in Court. They are made to help the cause of justice and not to defeat justice. The rules are therefore aids to the Court… For Court to read rules in the absolute without recourse to the justice of the cause, to my mind, will be making the Courts slavish to the rules. This clearly is not the reasons of the rules of Courts.”
See also Olufeagba & Ors v. Abdul-Raheem & Ors (2009) 18 NWLR (Pt. 1173) 384; (2009) 11-12 (Pt. 1) SCM 125; (2009) LPELR – 2613 (SC). PER ADEGBEHINGBE, J.C.A.
TANI YUSUF HASSAN, J.C.A. (Delivering the Leading Judgment): The Appellant as petitioner in the High Court of Rivers State Port Harcourt Division, filed a petition on 21/8/2019 for dissolution of marriage against the respondent, wherein he seeks for the following orders.
A decree of dissolution of the marriage between the petitioner and the respondent on grounds of:
i. The unsound mind of the Respondent is unbearable and the respondent is unlikely to recover from her mental health challenge.
ii. The unsoundness of mind of the Respondent has put the life of the petitioner and his children at risk, by her actions and inactions on daily basis.
iii. The Respondent had severally engaged in adultery which had created room for lack of trust and confidence and has brought shame, disgrace and mockery to the petitioner and his family at large, within the environment of the petitioner and the Respondent.
iv. The Respondent has behaved in such a manner that the petitioner cannot reasonably be expected to live with the Respondent, who had refused to perform her matrimonial and domestic responsibility for the family as a result of her unsound mind. The petitioner prayed the Court for the following:
1. That the marriage contracted at the marriage Registry, Obio/Akpor Local Government Council, Rivers State on 31st March, 2009 between the petitioner and the respondent be dissolved.
2. That until the Honourable Court determine and pronounce an order of Decree of the Dissolution of the Marriage the respondent and the petitioner live separately.
3. That the 3 children (1) Emmanuel Georgewill (ii) Mercy Georgewill (iii) Success Georgewill produced by the marriage, be in the custody of the petitioner.
The Respondent in response to the petition cross/petition and sought for the following reliefs.
1. The respondent object the prayers for dissolution of marriage.
2. The respondent is sound and has no mental issue, health issue or any other related health issue.
3. The respondent loves the children and want to have the children and the actions of the petitioner is unbearable.
4. The respondent has never been engaged in adultery and the respondent has been performing her matrimonial duties.
The respondent prayed for order:
i. The marriage will not be dissolved as there are no grounds for the dissolution of the marriage.
ii. Parties should not live separately as they are living together till date.
iii. The children should be under the custody of the Respondent considering their ages.
ALTERNATIVELY
1. The Respondent should have custody of the children of marriage considering their ages.
2. That the joint property of the marriage be divided between the parties in line with the law.
3. The maintenance of the children should be:
(a) Education: Two Million Naira (N2,000,000.00) per annum.
(b) Feeding/Health care: Two Million Naira (N2,000,000.00) per annum.
(c) Accommodation for the children per annum Two Million Naira (N2,000,000.00)
(d) Maintenance of the wife: Two Million Naira (N2,000,000.00) per annum.
After the exchange of processes between the parties, trial commenced on the 9th of December, 2019. At the conclusion of trial, judgment was given partially in favour of the respondent.
Dissatisfied with the judgment, the appellant appealed to this Court on three grounds of appeal dated 12th day of May, 2020.
The appellant’s brief filed on the 6th of October, 2020 by Ibietela Macson Jackreece Esq., has three issues for determination of the appeal which read:
i. “Whether the trial Court was right in refusing to grant a Decree for Dissolution Marriage, where the marriage has broken down irretrievably. And the Appellant/Petitioner cannot be reasonably expected to live with the Respondent.”
ii. “Whether the learned trial Judge was right in his evaluation of the weight of evidence before him without considering the validity or otherwise of the oral testimony of the petitioner which is the main fulcrum of the Appellant’s case.”
iii. “Whether the learned trial Judge was not wrong in his judgment order by commanding the petitioner/appellant to return the children of the marriage to plot 5 Engr. Temple Close, Warri, Delta State and enroll them in their former school.”
Learned counsel for the appellant adopted the brief and urged the Court to allow the appeal.
The respondent’s brief settled by P.C. Anene Esq., was dated and filed on the 13th of November, 2020. The respondent’s counsel adopted the issues formulated by the appellant for determination of the appeal and urged the Court to dismiss the appeal.
Without going into the merit of the case, it is noted that the Notice of Appeal dated and filed on 12th day of May, 2020 was filed in the registry of the Court of Appeal Port Harcourt Division contrary to Order 7 Rule 2 (1) of the Court of Appeal Rules, 2016 now Order 7 Rule 2 (1) of the Court Appeal Rules, 2021 which provides:
“All appeals shall be by way of rehearing and shall be brought by notice (hereinafter called “the notice of appeal”) to be filed in the registry of the Court below which shall set forth the grounds of appeal, stating whether the whole or part only of the decision of the Court below is complained of (in the latter case specifying such part) and shall state also the exact nature of relief sought and names and addresses of all parties directly affected by the appeal, which shall be accompanied by a sufficient, number of copies for service on such parties.”
It follows that the rules provides for filing of the Notice of Appeal at the registry of the Court below the decision of which is appealed against, in this case the High Court of Rivers State, Port Harcourt Division.
The Notice of Appeal is the spinal cord of an appeal. It is the most important step in the initiation of an appeal. It must be competent to enable the appellate Court assume jurisdiction in entertaining the appeal. Where it turns out to be defective and invalid, it renders the appeal incompetent and robs the appellate Court of the competence to adjudicate on the appeal. See Thor V. FCMB Ltd (2002) 2 SCNJ 85; (2002) 4 NWLR (Pt.757) 427; Uwazurike & Ors V. A-g Federation (2007) 8 NWLR (Pt.1035) 1.
A Court can only exercise jurisdiction when:
(a) It is properly constituted as regard number and qualification of members of the bench and no member is disqualified for one reason or the other.
(b) The subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction; and
(c) The case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction. See Madukolu V. Nkemdilim (1962) 2 SCNLR 341; Magaji V. Matari (2000)8 NWLR (Pt.670) 722 and Mawo V. Tsintuwa (2020)2 NWLR (Pt.1708) 306.
In Okpe V. Fan Milk PLC (2017) 2 NWLR (Pt.1549) 282 at 285, the Supreme Court held that an appeal is deemed to have been brought upon filing of the notice of appeal in the registry of the lower Court or the Court from which the appeal emanated. See also N.B.C. PLC V. Suleiman (2019) 18 NWLR (Pt.1703) 80 and I.B.W.A V. Pavex Int’l Co (Nig.)Ltd (2000) 7 NWLR (Pt.663) 105.
The Supreme Court also in SPDCN Ltd V. Agbara (2016) 2 NWLR (Pt.1496) 353, held that the Notice of Appeal is filed in the registry of the Court below and not in that of the appellate Court. See also Okotie V. Olughor (1995)5 SCNJ 217 and Harriman V. Harriman (1987)3 NWLR (Pt. 60) 224.
A void and invalid notice of appeal is a non-existence. It is only a valid and competent notice of appeal that activates jurisdiction of an appellate Court. A notice of appeal that is void ab initio, is invalid and incapable of activating the jurisdiction of an appellate Court.
In the instant case, the notice of appeal filed at the registry of the Court of appeal in violation of the mandatory provision of Order 7 Rule 2 (1) of the Court of Appeal Rules is incompetent. There is no due process followed by filing the notice of appeal at the registry of the Court of Appeal instead of the High Court of Rivers State, Port Harcourt Division as provided by the Court of Appeal Rules. The law and rules of Court are made to be obeyed. Law therefore is not what it should be, but what it is, and must be applied the way it is with strict compliance. The grounds of appeal and the three issues formulated for the determination by the parties, from the incompetent appeal are also incompetent. The incompetent Notice of appeal suffers the natural consequential fate which its liability is to be struck out for incompetence. See Onwuzulike V. State (2020) 10 NWLR (Pt. 1731) 91.
A Notice of Appeal is the originating process in an appeal. Once it is incompetent it remains so, and the Court no longer has jurisdiction to hear the appeal. Therefore, a valid appeal can only be said to exist when there is a competent notice of appeal, which gives life to or initiates all other subsequent processes to be filed in the appeal. Any vital and substantial defect in a notice of appeal would render the appeal incompetent, invalid and therefore rob the appellate Court of the requisite jurisdiction to entertain the appeal.
Therefore the absence of competent notice of appeal contaminated the appeal from its foundation. In the circumstance, there is no valid notice of appeal to ground the appellant’s appeal. See Daniel V. INEC (2015) 9 NWLR (Pt.1463) 113; Orji V. INEC (2020) 13 LPELR 49525; Okwuosa V. Gomwalk (2017) 9 NWLR (Pt.1570) 259; Apeh V. PDP (2016) 7 NWLR (Pt.1510) 153 and S.P.D.C. V. Agbara (Supra).
Accordingly, this appeal the notice of which was filed at the registry of the Court of Appeal on the 12th of May, 2020 shall be and is hereby struck out.
Appeal struck out. No order as to costs.
PAUL OBI ELECHI, J.C.A.: I read in draft the judgment just delivered by my learned brother, Tani Yusuf Hassan, JCA.
I agree with the reasoning and conclusion arrived at in striking out the appeal for being incompetent.
Appeal struck-out.
OLABODE ABIMBOLA ADEGBEHINGBE, J.C.A. (DISSENTING): I had the privilege of reading in draft the judgment delivered by his Lordship, Tani Yusuf Hassan JCA., this morning, in this appeal. I am unable to agree with all stated and determined in the said judgment. It is therefore considered apt that I should record my views, directly, as stated below, as my judgment.
REFUSAL TO STRIKE OUT THE NOTICE OF APPEAL
The first point of my divorce from the lead judgment is where it held that the appeal should be struck out, because it was filed in the registry of this Court, instead of in the registry of the lower Court, as prescribed by Order 7 Rule 2(1) of the Court of Appeal Rules, 2016, which provides thus:
“2(1) All appeals shall be by way of rehearing and shall be brought by notice (hereinafter called “the notice of appeal”) to be filed in the registry of the Court below which shall set forth the grounds of appeal, stating whether the whole or part only of the decision of the Court below is complained of (in the latter case specifying such part) and shall state also the exact nature of the relief sought and the names of and addresses of all parties directly affected by the appeal, which shall be accompanied by a sufficient number of copies for service on such parties.”
First, I have examined the notice of appeal, at pages 141-142 of the record of appeal, and there is nothing written on the document to suggest that it was filed in the registry of this Court. The notice of appeal, deriving from the prescribed Form in the First Schedule to the Court of Appeal Rules, either of 2016 or 2021 (Forms 3 and 5, respectively), has the Court of Appeal as its heading, though expected to be filed in the lower Court. There is stamp on it which pronounces that it is “CERTIFIED TRUE COPY APPEALS REGISTRY H/CT PH”, which I understand as High Court Port Harcourt. See Order 8 Rule 9 of the Court of Appeal Rules, 2016.
Secondly, the parties to this appeal did not raise the issue and they did not make comments or submissions on the issue before us, in order to afford them opportunity to confirm where the notice of appeal was filed, if it is indeed an issue, which I do not consider it as one. Parties having not raised the issue, which is a procedural issue, it is important to point out that Courts have over the years advised that such issue should be treated mildly. Even, if the notice of appeal, which is at pages 322-325 of the record of appeal, was filed in the registry of this Court, it would still not have affected the jurisdiction of this Court.
Thirdly, even where an application is brought, which is not the case here, by any of the parties to strike out the notice of appeal, this Court would have been guided by Order 21 Rule 5(1) and (2) of the Court of Appeal Rules, 2016, which provides:
“5.-(1) An application to strike out or set aside for non-compliance with these Rules, or any other irregularity arising from the Rules of Practice and Procedure in this Court, any proceedings or any document, judgment or order therein shall only be entertained by the Court if it is made within a reasonable time and before any party applying has taken any step after becoming aware of the irregularity.
(2) An application under this Rule may be made by motion on notice and the grounds of objection must be stated therein.”
No one has complained in this appeal about the notice of appeal, until this Court reserved the appeal for judgment. Even if there was a complaint, it could not have succeeded, where parties argued the appeal, based on the processes filed and went away from Court, to await judgment. Parties saw no evil in the notice of appeal.
In keeping with the direction of the provision quoted above, the Courts have, over the years, insisted that procedural jurisdiction should not be allowed to foreshadow the exercise of the appellate rights of parties in our Courts. In the case of Ajibode v. Gbadamosi [2021] 7 NWLR (Pt. 1776) 475, the Supreme Court stated that there are two types of jurisdiction – procedural and substantive. The latter is a matter of substantive law; while the former is a matter of procedural law regulating the practice and procedure guiding the manner suits are initiated, tried, etc. The distinction between the two is that substantive jurisdiction is vested in the Court by the enabling statute or the Constitution. It is not conferred by any litigant and cannot be waived by any litigant. On the other hand, a litigant may submit to the procedural jurisdiction of the Court or waive any defect in the procedural jurisdiction of Court by acquiescing in the defect. In the case cited, the Court held that it was too late in the day for the appellants to complain about any defect in the writ of summons to which they unconditionally entered appearance, filed pleadings, and called evidence, and in respect of which the trial Court gave them judgment. See A.-G., Kwara State v. Adeyemo (2017) 1 NWLR (Pt. 1546) 210; Ndayako v. Dantoro (2004) 13 NWLR (Pt. 889) 187; Heritage Bank Ltd v. Bentworth Finance (Nig.) Ltd. (2018) 9 NWLR (Pt. 1625) 420.
In the case of Odom v PDP [2015] 6 NWLR (Pt. 1456) 527, M. D. Mohammad, JSC stated in respect of filing notice of appeal in a wrong registry:-
“In arguing their preliminary objection to the cross-appeal, learned appellants/cross-respondents counsel submits that the notice of cross-appeal filed on 25-04-2014 at the Supreme Court’s Registry instead of the Registry of the Court of Appeal, on the authority of Korede v. Adedokun (2001) 15 NWLR (Pt. 736) 483 at 496 is incompetent inspite of this Court’s order of 26-05-2014 deeming the notice as duly filed. The notice having been filed in contravention of Order 2 Rule 30 of the Supreme Court’s Rules remains incompetent. It follows also that the cross-appellant’s brief that is filed pursuit to the incompetent notice of appeal is also incompetent. Further relying on Ogbechie v. Onochie (No. 2) (1988) 1 NWLR (Pt. 70) 370 at 402, learned appellants/cross-respondents’ counsel submits that the cross-appeal be struck out.
Replying, learned cross-appellant’s counsel contends that the appellants/cross-respondents’ preliminary objection to the competence of the cross-appeal is misconceived. The objection, it is submitted, having failed to take account of Order 6 Rule 4, Order 8 Rule 11 and Order 10 rule 1 Sub-rules (1) and (2) of the Supreme Court Rules cannot be taken seriously. Supporting his submission with the decision in Obi v. I.N.E.C. In Re: Dr Andy Uba (2008) 7 NWLR (Pt. 1085) 68 at 78, learned counsel urges that the objection be overruled.
It must outrightly be stressed that a party’s right of appeal is constitutionally guaranteed. Learned appellants’/cross-respondents’ counsel must be reminded that though it is of utmost importance to comply with rules of Court, the fact remains that being Rules of Procedure, they do not themselves and of themselves alone confer jurisdiction on a Court. They merely regulate the exercise of the jurisdiction the Constitution or the statute vests in the Court. Unless it is expressly stated that non-compliance with the rules particularly renders a cause incompetent, the Court’s pre-occupation must be the doing of substantial justice between the parties in respect of the dispute the Court is asked to resolve.
In the case at hand, appellants’/cross-respondents’ preliminary objection, given the fundamentality of the cross-appellant’s right of appeal as guaranteed by the Constitution, cannot be given the effect the appellants/cross-respondents urge on us. The filing of this appeal at this Court’s registry instead of the lower Court’s registry should not, by itself alone, make us jettison the cross-appellants’ right of appeal. After all, Rules of Court have never been the source of the Court’s jurisdiction. This Court will not abandon its jurisdiction because of the cross-appellant’s non-compliance with the rules which require that appeals be filed at the lower Court. The rules are in place to regulate practice of the Court in the exercise of the jurisdiction the Constitution confers on it. These rules should not provide the means of compromising the appellant’s right of appeal as conferred by the Constitution. See Ogunremi v. Dada (1962) 1 All NLR 663 at 671; (1962) 2 SCNLR 417.”
In the case of Belgore v. FRN (2021) 3 NWLR (Pt. 1764) 503, the Supreme Court insisted that there is a distinction between two types of jurisdiction viz – jurisdiction as a matter of procedural law and jurisdiction as a matter of substantive law. Whilst a litigant can waive the former, no litigant can confer jurisdiction in the Court where the Constitution or statute or any provision of the common law states a Court shall have no jurisdiction. A litigant may submit to the procedural jurisdiction of the Court, such as where a writ has been served outside jurisdiction without leave. See also Ndayako v. Dantoro (2004) 13 NWLR (Pt. 889) 187.
In the case of Bakari v. Ogundipe [2021] 5 NWLR (Pt. 1768) 1, decided that waiver is the intentional and voluntary abandonment of a right. It is either express or implied from conduct. Where a party has waived his right to insist that the correct procedure must be followed, he cannot later on appeal, resile, and complain of what he has waived. In other words, a right that has been waived is lost. The reasoning being that once the other party acts upon the waiver, the party waiving the right can no longer go back on the waiver and act as if it was never waived. It is only when objection is made at the earliest opportunity can it be said that the right was not waived.
Returning to the issue of venue of filing a notice of appeal, in the case of Poroye v. Makarfi [2018] 1 NWLR (Pt. 1599) 91 at 146-147, the Supreme Court stated:
“Furthermore, on the issue of filing of the notice of appeal at the Court below instead of the trial Court, which meant non-compliance with the rules of the Court, I am of the firm view that, that should not prevent this Court from ensuring that justice is seen to be manifestly done. The rules of Court are no doubt, meant to be obeyed by all parties concerned and at all times, including the Courts. See U.T.C (Nig.) Ltd. v. Chief Pamotei (1989) 2 NWLR (Pt. 103) 244 at 296 paras. F-G where this Court, per Belgore, JSC (as he then was, later the CJN) opined as follows:
“Rules of procedure are made for the convenience and orderly hearing of cases in Court. They are made to help the cause of justice and not to defeat justice. The rules are therefore aids to the Court… For Court to read rules in the absolute without recourse to the justice of the cause, to my mind, will be making the Courts slavish to the rules. This clearly is not the reasons of the rules of Courts.”
See also Olufeagba & Ors v. Abdul-Raheem & Ors (2009) 18 NWLR (Pt. 1173) 384; (2009) 11-12 (Pt. 1) SCM 125; (2009) LPELR – 2613 (SC). Where strict compliance will also lead to injustice and unbearable delay, the Court is enjoined to waive strict compliance. In Obadiam v. Grae Uyigule & Anor (1986) 3 SC 39 at 40 this Court per Irikefe, CJN opined as follows:-
“However, in the interest of justice and in order to save such time as would have been wasted by striking this appeal out hereby, we have decided to deem this as an application for leave to file the notice and grounds again out of time and this time before us so that this appeal may be properly pending before us. We have accordingly waived the requirement that the notice be filed in the Court below, that is, at the Court of Appeal. By doing this, we now have a situation where this appeal is now before us.”
In Odom & Ors v. PDP & Ors (2015) 2 SCN 209 at 226, (2015) 6 NWLR (Pt. 1456) 527 at 555, para. B-D this Court, per Dattijo Muhammad, JSC, in considering similar situation of non-compliance with the rules in filing the notice of appeal in the Court from where appeal lies, opined thus:
“The filing of this appeal at this Court’s registry instead of the lower Court’s registry should not, by itself alone, make us jettison the cross appellants’ right of appeal. After all, rules of Court have never been the source of the Court’s jurisdiction. This Court will not abandon its jurisdiction because of the cross-appellant’s non-compliance with the rules which require that appeals be filed at the lower Court. The rules are in place to regulate practice of the Court in the exercise of the jurisdiction the Constitution confers on it.”
However, Order 20 Rule 5 of the 2016 Court of Appeal rules, formerly of 2011, provides that, an appeal will not be struck out for non-compliance with the rules or for any other irregularity unless the objection to the procedure is made within a reasonable time and before the party applying has taken any fresh step after becoming aware of the irregularity. In the instant case, I agree with the respondents that both parties had taken fresh steps, in particular, the appellants, after becoming aware of the non-compliance with the filing of the notice of appeal at the trial Court. The objection is not being raised promptly and timeously as required.
Furtherstill, it should be noted that this non-compliance with the rules did not affect the substantive law in relation to the jurisdiction of the Court. At best, it concerns the procedural law on jurisdiction, hence it can be waived. See Ndayako v. Dantoro (2004) 13 NWLR (Pt. 889) 187 at 219; Ibeanu v. Ogbeide (1994) 7NWLR (Pt. 359) 697 at 716.
In the circumstance, this issue is resolved against the appellants but in favour of the respondents. The deeming order of the Court below on the notice of appeal was properly made and renders the notice of appeal which was filed at the Court below, instead of the trial Court valid.”
In the case of In Re: Uba [2008] 7 NWLR (Pt. 1085) 68 at 77-79, the Supreme Court had the following to say about filing a notice of appeal in a wrong registry:
“It needs be said however that these applications would appear to be one of no ado about nothing. The presentation before us and the array of counsel involved notwithstanding, the simple question for resolution is simply whether a notice of appeal filed in the Court of Appeal instead of the Federal High Court is void or voidable. Order 3 Rule 2(1) of Rules of the Court of Appeal provides that a notice of appeal shall be deemed filed when filed at the registry of the Court of trial. It does further prescribe that a notice of appeal shall be void if filed in the Court of Appeal rather than the High Court. Further, Order 7 Rule 3 of the Court of Appeal Rules provides:
“The Court may in an exceptional circumstance, and where it considers in the interest of justices to do, waive compliance by the parties with these Rules or any part thereof.”
I have no doubt that Order 7 Rule 3 above is a saving provision for non-compliance with the provisions of the Court of Appeal Rules. Most Rules of Court in Nigeria have similar provisions. These proceedings were commenced in the Federal High Court. The rules of the High Court have similar provision in Order 3 Rule 1. In my view, the non-compliance with Order 3 Rule 2(1) as to the venue to file an appeal would at the highest only confer on the adversary the right to ask the Court of Appeal to pronounce the notice of appeal in question void. It is not by itself self-executing.
Remarkably, the 5th respondent/applicant had known of the irregularity in the filing of the notice of appeal whilst proceedings were pending in that Court. He never objected or raised issue about the irregularity. The Court below was led into giving the judgment in favour of the 5th respondent/applicant with the knowledge that the notice of appeal was filed not at the High Court but in the Court of Appeal. The 8th respondent Ifeanyi Okonkwo had raised the point. If the Court below had not at the time struck out the appeal or penalized the appellant/respondent, it would be because it thought little of the non-compliance. The 5th respondent who had not then complained cannot now be allowed to complain of an occurrence he had previously thought little of. It would amount to allowing him to approbate and reprobate at the same time. The mistake of applicant’s counsel is to have assumed that the mere filing of the appeal at the registry of the Court below renders the appeal void without more. He believes he has a joker he can raise at any stage. This is a wrong assumption. Litigation premised on such approach would amount to or lead to injustice. I am also to state that at the time the alleged notice of appeal was filed in the Court of Appeal on 18/4/07, the records of appeal were all before the Court of Appeal, which situation completely removed the possibility of the Court below asking the appellant/respondent to go back to file his appeal at the trial High Court. See Order 1 Rule 22 of the Court of Appeal Rules. The case SC.161/2001 – The Honda Place Ltd. v. Globe Motors Holding Nig. Ltd. (2005) 14 NWLR (Pt. 945) 273 relied upon in counsel’s address only related to an order made by this Court upon an application heard in chambers. The order made in chambers was overruled by this Court sitting in open Court. This is quite a regular situation unlike the situation on hand.”
In the case of CBN v. Okojie [2004] 10 NWLR (Pt. 882) 488 at 512-513, this Court stated thus:
“The question of whether or not a proper notice of appeal has been filed in the Court below is a question which touches on the jurisdiction of this Court. If no proper notice of appeal has been filed then there is no appeal for this Court to entertain. See Kano Plastics Ltd v. Century Merchant Bank (1998) 3 NWLR (Pt. 543) 567 at 572-573; Oyebade v. Ajayi (1993) 1 NWLR (Pt. 269) 313, Olanrewaju v. B.O.N. Ltd. (1994) 8 NWLR (Pt. 364) 622. From the wording of Order 3 Rule 2 (1) of the notice of appeal shall be filed in the registry of the lower Court. However, I find the contention of the respondent in this appeal baseless in law. On examination of the records of proceedings, it shows at pages 8-10 that 1st and 2nd appellants were 1st and 2nd defendants at the Court below, whereas the 3rd – 7th appellants were 3rd – 7th defendants respectively. The 1st and 2nd appellants were represented by counsel at the trial and filed their statement of defence. The 3rd – 7th defendants were not represented and did not file any defense. All through the trial and proceedings at the Court below the 3rd – 7th appellants did not participate. Written addresses were ordered. The respondent and 1st and 2nd appellants filed addresses and judgment was entered in favour of the respondent.
The 1st and 2nd appellants being dissatisfied with the said judgment appealed against it. In the appeal filed by the 1st and 2nd appellants, the present 3rd – 7th appellants were 2nd – 6th respondents. See page 81A of Volume 1 of the record of appeal and all the cover pages of Volumes 1 and 11 of the records. The 1st and 2nd appellants caused the appeal record to be compiled and thereafter transmitted by the Registrar of the Court below to the Registry of this Court in line with the rules of this Court. The 1st and 2nd appellants later filed their brief of argument. The 3rd – 7th appellants later filed an application filed on 8/9/99 for extension of time within which to seek leave to appeal against the same judgment. The essence of that application was to allow the 3rd – 7th appellants participate in the appeal and not as respondents. When time was extended to the 3rd – 7th respondents to appeal was granted and the record of appeal had been transmitted from the Court below, and the appeal entered in the Court of Appeal list, in line with the provisions of Order 3 R. 13(1) and (2) of the Court of Appeal Rules, the appeal is said to be properly filed because, the Registrar of the Court below became “functus officio”. The notice of appeal filed by the 3rd – 7th respondents was pursuant to leave granted by this Court. Besides, when this Court granted application of the 3rd – 7th appellants, it ordered that fresh notice and grounds of appeal be comprehensively filed. All these were filed in this Court not in the Court below. I agree with the learned counsel for the 3rd – 7th appellants that since the record of appeal had been properly transmitted and served on all the parties, and appeal entered, it will amount to duplicity of effort, resources and ultimately lead to delay of these appellants, pursuant to the leave granted, to file the notice and ground of appeal at the Registry of Court below. It is not the practice in this Court that where the record of appeal had been properly transmitted and served on all parties and appeal entered in the cause list with appeal number as contemplated by Order 3 Rule 5 of this Court, for the appellant to go to the lower Court to file the notice and grounds of appeal at the Court below. It would have been different if the record had not been transmitted and appeal not duly entered in the cause list.
It is on this basis I dismiss the respondent’s preliminary objection as unmeritorious and baseless.”
I therefore refuse to agree to strike out the notice of appeal and this appeal, solely, on the basis of where it was filed, apart from the fact that I have held that the notice of appeal was filed in the registry of the lower Court, where it was certified as a true copy. It is good that this Court should err (and it will not err) on the side of hearing the appeal on the merit.
THE FACTS
Parties to this appeal are married to each other. Their marital journey started at the Marriage Registry of the Obio/Akpor Local Government Council, Rivers State on 31/03/2009. They were issued a marriage certificate. They live in the same house. They are blessed with three children – (1) Emmanuel (9 years old – at the time the petition was filed (2) Mercy (7 years old – at the time the petition was filed (3) Success Georgewill (4 years old – at the time the petition was filed).
On 21/08/2019, the appellant filed a petition, seeking a decree for the dissolution of his marriage to the respondent before the Port Harcourt Division of the High Court of Rivers State. The orders sought before the lower Court are as follows:
“9. ORDER SOUGHT
The Petitioner seeks the following orders: A decree of dissolution of the Marriage between the Petitioner and Respondent on grounds of:
(i) The unsound mind of the Respondent is unbearable and the Respondent is unlikely recover to from her mental health challenge.
(ii) The unsoundness of mind of the Respondent has put the life of the Petitioner and his children at risk, by her actions and inactions on daily basis.
(iii) The Respondent had severally engaged in Adultery, which had created room for lack of trust and confidence and has brought shame, disgrace and mockery to the Petitioner and his family at large, within the environment of the Petitioner and the Respondent.
(iv) The Respondent has behaved in such a manner that the Petitioner cannot reasonably be expected to live with the Respondent, who had refused to perform her matrimonial and domestic responsibility for the family, as a result of her unsound mind.
10. ORDER OF THE HONOURABLE COURT
(1) That the marriage contracted at the Marriage Registry, Obio/Akpor Local Government Council, Rivers State on 31st March, 2009, between the Petitioner and the Respondent be dissolved.
(2) That until the Honourable Court determines and pronounce an order of decree of the dissolution of the Marriage, the Respondent and the Petitioner live separately.
(3) That the 3 children (i) Emmanuel Georgewill (ii) Mercy Georgewill (iii) Success Georgewill produced by the marriage, be in the custody of the Petitioner.”
THE JUDGMENT
At the trial, the petitioner testified for himself. The Respondent testified for herself. In a considered judgment, the lower Court, delivered its judgment on 30/04/2020, under the hand of Justice M. W. Danagogo. At pages 138-139 of the record of appeal, the lower Court concluded:
“By Section 15(2) of the Matrimonial Causes Act, the Petitioner in a petition for decree of dissolution of marriage must satisfied the Court of one of the facts or conditions in Section 15(2) (a) to (h) of the Matrimonial Causes Act before the Court can grant the decree.
In the instant case, the Petitioner has failed woefully to establish any of the conditions in Section 15(2) of the Matrimonial Causes Act. I hold therefore that the marriage between the parties has not broken down irretrievable. There is therefore no basis for me to grant a decree of the dissolution of the marriage.
On the custody and welfare of the innocent children of the marriage, the undisputed fact before me is that the Petitioner without the knowledge and consent of the Respondent – their mother, moved the children from their matrimonial home and school in Warri, Delta State to an unknown place.
This to me is wrong. It is not in the best interest of the children. The Petitioner is hereby ordered to forthwith return the children to their matrimonial home and re-enroll them in their former school in Warri, Delta State.
On the properties jointly owned by the parties, by Section 75(1) (2)(a) of the Matrimonial Causes Act, this Court cannot make any order with respect to the joint properties of the parties having dismissed the principal relief of the Petitioner for the dissolution of the marriage between the parties.
In conclusion, I hereby declare and order as follows:
1. That the marriage between the parties has not broken down irretrievably. Therefore, the prayer for a decree of dissolution of the marriage is refused and dismissed.
2. The Petitioner is ordered to forthwith return the children of the marriage to their matrimonial home at Plot 5 Engr. Temple Close, by Pipeline, Ekpen Warri, Delta State.
3. The Petitioner is further ordered to forthwith take the children back to their former school, International Unity School (I. U. S) Warri, Delta State and re-enroll them there.
4. No order as to the joint properties of the parties.
5. No order as to cost.”
THE APPEAL
Apparently dissatisfied with the decision of the lower Court, the appellant filed a notice of appeal against the decision on 12/05/2020, containing three grounds of appeal. The three grounds are recorded as follows:
“Ground 1
The learned trial Judge erred in law, thereby occasioning a miscarriage of justice when it held that, the Petitioner and the Respondent continue to be husband and wife in cause of action being Dissolution of Marriage and custody of children.
Ground 2
The learned trial judge misdirected itself when it concluded that the Petitioner should return to his house with the children and leave with the Respondent as husband and wife.
Ground 3
The decision of the learned trial judge was against the weight of evidence before it, when it failed to evaluate evidence of the Petitioner.”
Appellant’s brief of argument was filed on 06/10/2020, settled by Ibietela Macso Jackreece Esq. Learned counsel distilled three issues for the determination of the appeal, thus:
(i) Whether the trial Court was right in refusing to grant a Decree for the Dissolution of Marriage, where the marriage has broken down irretrievably. And Appellant/Petitioner cannot be reasonably expected to live with the Respondent.
(ii) Whether the learned trial Judge was right in his evaluation of the weight of evidence before him without considering the validity or otherwise of the oral testimony of the Petitioner which is the main fulcrum of the Appellant case.
(iii) Whether the learned trial Judge was not wrong in his judgment order by commanding the Petitioner/Appellant to return the children of the marriage to Plot 5, Engr. Temple Close, Warri, Delta State. And the re-enroll them at their former school.
On the first issue, learned counsel submitted that a Court is enjoined to dissolve a marriage where a marriage has broken down, irretrievably, and where, as in this case, the petitioner cannot be reasonably expected to live with the respondent, going by the provisions of Section 15 of the Matrimonial Causes Act, Cap. M. 7 and the decision in the case of Akinbuwa v. Akinbuwa [1998] 7 NWLR (Pt. 559) 661. He complained that it was wrong for the lower Court not to have granted a decree for the dissolution of marriage, where the appellant stated that he cannot reasonably be expected to live with the respondent, due to her violent, abnormal behaviours leading to several death threats. He urged the Court to hold that the appellant has withdrawn his consent to the marriage by filing the petition and the present appeal. He complained of persistent nagging by the respondent and threat to life.
He submitted that adultery and abnormal behaviour are grounds for the lower Court to grant the dissolution of the marriage. He cited Section 15(2)(a)-(h) of the Matrimonial Causes Act (MCA) and directed the attention of the Court to pages 104-113 of the record of appeal. Citing the case of Ekrebe v. Ekrebe [1999] 3 NWLR (Pt. 596) 514, he submitted that the petitioner must plead and prove that the marriage has broken down, irretrievably.
On the second issue, learned counsel contended that the lower Court erred in law, when it failed to evaluate the evidence of the appellant, on the issue of the respondent’s mental ill-health, activities and daily nagging antecedents and putting such on the imaginary scale and weigh them, before making its decision. He insisted that, in view of the intolerable behaviour of the respondent, the appellant cannot be expected to live with the former, which is a factor the lower Court should have considered. He complained that the lower Court ought to have considered the totality of the matrimonial history of the parties, as pointed out in the petition. He relied on the unreported case of suit no. O/6D/72: Ibeawuchi v. Ibeawuchi decided on 19/02/1973; Damulak v. Damulak [2004] 8 NWLR (Pt. 874) 151 and Ibrahim v. Ibrahim [2007] 1 NWLR (Pt. 1015) 386.
Learned counsel insisted that before, during and after the judgment of the lower Court, the respondent has been putting up stinking and detestable and condemnable conduct that the Petitioner finds it intolerable to live with the Respondent like the constant nagging, using of dangerous weapons on the Petitioner with little or no provocation and her mental activities in video clip and regrets during lucid period. He also complained about the respondent’s mother’s undue interference in the marriage and strong influence over the respondent, in decision making in the family. Learned counsel complained about the respondent’s mother’s refusal to lead the respondent for psychological attention, instead of treating the respondent through local herbalist (page 11-12 of the record of appeal). All the above were not taken into consideration by the lower Court in its judgment.
Learned counsel introduced a generous dosage of quotations from the Holy Bible, to persuade this Court to interfere with the judgment of the lower Court. He urged the Court to dissolve the marriage of the parties. He relied on the case of Abdulmumini v. FRN [2017] LPELR 43726 (SC). On the third issue, learned counsel argued that, in considering who should take custody of the children, considerations like who should take custody of the children, respective incomes of the parties, arrangement made by parties for the education of the children or opportunities for proper upbringing are matters, should affect the determination of the person to take custody of the children. He cited the case of Otti v. Otti [1992] 7 NWLR (Pt. 252) 539 at 560. Learned counsel explained that it is the appellant who has the accommodation where the appellant and the children live. It is the appellant who pays the children’s school fees. Appellant is a permanent staff of an Oil Services Company, who is capable of taking care of the three (3) children of the family. The appellant is ready to allow the respondent access to the children.
In the opinion of learned counsel, what constituted paramount welfare of the children or child, in custody cases, is a composite of many factors such as emotional attachment to a particular parent, adequate facilities such as educational capability, religious upbringing or other opportunities for proper upbringing. He relied on the case of Williams v. Williams [1987] 2 NWLR (Pt. 54) 66. He accused the lower Court of failing to consider the facts, as adduced in evidence by the appellant, that the respondent had several times engaged the children’s teachers in fights in three (3) different schools, which led to their changing their schools four times. He accused the lower Court of improper evaluation of evidence and requested this Court to intervene. He relied on the case of Rabiu v. Kure [2010] All FWLR (Pt. 539) 1070 at 1088.
Learned counsel complained about the evidence of the respondent who testified, under cross-examination, that she signed her witness statement on oath, in her lawyer’s office.
He urged the Court to allow the appeal, set aside the judgment of the lower Court and grant the reliefs sought in the petition or that the Court should order a fresh trial before another judge in the lower Court.
The respondent’s brief of argument was filed on 13/11/2020, settled by P. C. Anene Esq. Learned counsel wisely adopted the issues submitted by the appellant.
On the first issue, learned counsel referred the Court to Section 15(2(a)-(h) of the Matrimonial Causes Act, which concern facts to be established by the petitioner, seeking the Court to hold that a marriage has broken down irretrievably. He cited the case of Chikere v. Chikere [2011] 12 RSLR 144 at 146. Learned counsel pointed out that the appellant failed to meet any of the requirements set by the statute. Learned counsel mentioned that parties are still living together, based on the evidence led at the trial. On the fact of the appellant claiming to have taken the respondent to a psychiatric hospital, on 11/08/2019, as a result of the respondent’s unsound mind, it is the view of learned counsel that, that assertion will still fall short of the requirement of Section 16(1)(g) of the Matrimonial Causes Act. He pointed out the restriction on findings of insanity provided by Section 24 of the Matrimonial Causes Act. The respondent, according to learned counsel, was in Court throughout proceedings and testified before the Court, where it was revealed that the respondent is a member of the staff of NOSDRA in Warri. Learned counsel intoned that the lower Court was right when it held that the appellant failed to prove unsound mind or insanity as ground for divorce.
Reference was made to Section 32 of the Matrimonial Causes Act, which provides for how allegation of adultery should be handled and the need to join the party with whom a spouse is alleged to have been engaged in adultery to the suit. He cited the case of Elekwashi v. Elekwashi & Anor. [2012] 11 RSLR 119, where it was held that adultery could only be proved by circumstantial evidence, and that, that proof was absent at the trial.
The attention of the Court was drawn to Section 17(1) of the Matrimonial Causes Act, which provides for allegation that the respondent has behaved in such a way that the petitioner cannot be reasonably expected to continue to live with the respondent. In the case at hand, learned counsel pointed out that parties still live together.
On the second issue, learned counsel pointed out that the lower Court was right when it left out oral testimony, when they do not form part of the sworn deposition and thus amount to afterthought, without weight. He gave the lower Court a pass mark in its evaluation of evidence.
On the third issue, learned counsel explained that there is evidence on record that the appellant, after filing this petition and under the pretext of dropping the children in school spirited them away to Port Harcourt, where he handed them over to his mother (see page 27 of the record of appeal). He described the orders made by the lower Court as those enjoined by Section 109 of the Matrimonial Causes Act. On the fact that the interest of the children of a marriage being paramount, learned counsel cited Section 71(1) of the Matrimonial Causes Act. He submitted that when the balance is disturbed by wrong doing or threat to it, the law will not leave the injured party with the usual remedy or ordering compensation of damages. It will interfere to restore, as far as possible, the status quo ante and thereby prevent the continuation of the injury or mischief. He relied on the case of Umejuru v. Imordi & Ors. (2009) 12 RSLR 85 at 89-90.
He urged the Court to dismiss the appeal with substantial costs.
The appeal was argued on 17/01/2022. I. N. Jackreese Esq., appeared for the appellant. He adopted the appellant’s brief of argument, filed on 06/10/2020, as argument of the appeal.
He urged the Court to allow the appeal.
M. A. Onwumere Esq., adopted the respondent’s brief of argument, filed on 03/11/2020, as argument of the appeal. He urged the Court to dismiss the appeal.
DETERMINING THE APPEAL
This is an appeal against the decision of the High Court of Rivers State in a matrimonial cause. The decision in Harriman v. Harriman [1989] 5 NWLR (Pt. 119) 6 at 15 instructs that a matrimonial cause is a proceeding for a decree of dissolution of marriage. An appeal against a decision, in a matrimonial cause, is still a matrimonial cause. This much is very clear from the provisions of S. 114 of the Matrimonial Causes Act. It is therefore the duty of this Court to ensure that the proceedings in this appeal, apart from complying with prescriptions embedded in general law and procedure, guiding appeals, the provisions of our statutes, regarding conduct of matrimonial cause disputes are respected and obeyed.
Vague Grounds of Appeal
It is in regard of the statement made, immediately above, that it is the the duty of this Court to examine the grounds of appeal, which birthed this appeal to confirm whether they answer the name of grounds of appeal. The case of Obasi v. Mikson Establishment Industries Limited (2016) 16 NWLR (Pt. 1539) 335 at 378-379 directs that in the determination of the categorization of grounds of appeal, such a function cannot be done with just the grounds of appeal, without the particulars. It is from the particulars that the class of the ground of appeal would be discerned. The duty is not served merely by an appellant naming a ground of appeal as one of “misdirection of law” or “error of law”. In the categorization, there is a thin line as it is one that can be made without proper ascertainment of the particulars alongside the grounds in issue.
In the case of CBN v. Okojie (2002) 8 NWLR (Pt. 768) 48, the Supreme Court stated that the vagueness of a ground of appeal may arise where it is couched in a manner which does not provide any explicit standard for its being understood, or when what is stated is so uncertain that it is not susceptible of being understood. It may also be considered vague when the complaint is not defined in relation to the subject or it is not particularised or the particulars are clearly irrelevant.
See Atuyeye v. Ashamu (1987) 1 NWLR (Pt. 491) 267.
The decision in Dikibo v. Ibuluya (2006) 16 NWLR (Pt. 1006) 563 at 573, dictates that the particulars of a ground of appeal must state with sufficient clarity the error in the judgment complained about. In the case of Umana v. Attah (2004) 7 NWLR (Pt. 871) 63 at 85, this Court decided that a ground of appeal which allege errors in law or misdirection but fails to furnish the particulars of the error or misdirection alleged is invalid.
An examination of the grounds in the appellant’s notice of appeal will confirm that the appellant elected to disrespect the persistent admonitions of the Court on the manner grounds of appeal should be presented. In this appeal, grounds 1 and 2 in the notice of appeal are bereft of particulars, despite announcing that the lower Court “erred in law” and “misdirected”, respectively. In the circumstance, this Court has a duty to strike out the two grounds of appeal for irreversible incompetence, especially, because particulars of the grounds of appeal are not embedded within the body of the grounds, as it sometimes occurs. Grounds 1 and 2 in the notice of appeal are hereby struck out. Incidentally, the appellant failed to relate the issues submitted for determination to any of the grounds of appeal.
In my opinion, the first issue is derived from ground 1, and it is hereby struck out.
The third issue for determination is derived from ground 2, whose single particular is, actually, a pretence and nothing like a particular to a ground of appeal. The particular merely repeated what is written in ground 2. The third issue is hereby struck out.
The second issue is derived from ground 3, which is the omnibus ground of appeal. The second issue asks a question about evaluation of evidence. This Court therefore has only the second issue to contend with, in its resolution of this appeal.
RESOLUTION OF THE SECOND ISSUE
In approaching the second issue, it needs to be mentioned that due to the limited scope of the ground of appeal from which it is derived, the second issue, essentially, arrives with its peculiar limitations, too. The case of Lagga v. Sarhuna (2008) 16 NWLR (Pt. 1114) 427 at 453, lays it down that a ground of appeal which complains that the judgment appealed against is against the weight of evidence is called the omnibus ground of appeal. An omnibus ground of appeal is a general ground of appeal in either civil or criminal appeal. In a civil appeal, it postulates that there was no evidence which, if accepted, would support the finding of the trial Court or the inference which is made. It always has to do with evidence led and evaluation thereof by the trial Court. An appeal predicated on the omnibus or general ground is not at large. It cannot be used to raise an issue or issues of law. Such issue of law must be raised as a separate ground of appeal and not made an adjunct to the omnibus ground. See F. M. H. v. C.S.A. Ltd (2009) 9 NWLR (Pt. 1145) 193 and Calabar East Co-operative Thrift & Credit Society Ltd. v. Ikot (1999) 14 NWLR (Pt. 638) 225.
In addition to the above, the case of Ashiru v. Olukoya (2006) 11 NWLR (Pt. 990) 1 at 21, advises that a finding of fact by a trial Court not appealed against stands admitted and undisputed. The finding remains binding on the parties and is valid. In the case of Interdrill (Nig.) Ltd v. U.B.A. Plc (2017) 13 NWLR (Pt. 1581) 52 at 71, we are warned that a finding of fact not appealed against cannot be disputed. In effect, the correctness of such finding cannot be questioned.
A perusal of the judgment of the lower Court and the remaining ground of appeal confirms that the appellant did not raise any ground of appeal against the findings of fact made by the lower Court. This Court is not enabled by the law to violate those conclusions by the lower Court, in the circumstances of this appeal. A specific finding of fact, adverse to a party, not appealed by such party is taken as conclusive and acceptable to such a party. See I.G.P. v. Sonoma (2021) 12 NWLR (Pt. 1791) 489 at 517.
At pages 134-138 of the record of appeal, the lower Court stated its findings as follows:
“From the petition and evidence before me, the grounds relied upon by the Petitioner for the dissolution of the marriage between the parties are as follows:
1. That the Respondent has severally engaged in adultery with a neighbor.
2. That the Respondent has mental problem. That the Respondent behaves in such a manner that the Petitioner cannot reasonably be expected to live with her.
3. That as a result of her unsound mind, she has refused to perform her matrimonial and domestic duties to the family.
The Respondent denied the allegations made against her by the Petitioner. She said she has never engaged in any extra-marital affairs with any person or neighbor, that she has never behaved abnormally or acted in any way to bring disgrace, shame or mockery to the Petitioner. Rather, that it is the Petitioner that always beat her before their children. That he always invites his elder brother and mother to their matrimonial home to beat her up.
Now, on the issue of adultery, the Petitioner did not mention the name of the neighbour that the Respondent had extra-marital affairs with. He also did not join the said man as a party in this suit. By Section 32(1) of the Matrimonial Causes Act failure by the Petitioner to make the said man a party to the suit is fatal to his case. See also the case of Eigbe v. Eigbe (2012) LPELR – 19690(CA) where the Court of Appeal held thus:
The provision of Section 32 of the Matrimonial Causes Act … is very clear on a person alleged to have committed adultery with a partner in marriage … where such a person is not joined, adultery per se, cannot constitute a ground for a decree of dissolution of such marriage. Joinder of adulterers is a must requirement of the law. Where such adulterers are not joined, the Petitioner cannot use any legal process for dissolution of the marriage on that ground.
Furthermore, my humble view and I so hold is that the allegation of adultery made by the Petitioner against the Respondents is an afterthought, cooked up by the Petitioner to tarnish the image of the Respondent for the purpose of this petition. I hold this view because, a careful perusal of Exhibit ‘C’, the letter the Petitioner sent to the elder brother of the Respondent dated 9/7/2018 clearly shows that adultery is not one of the allegations he made against the Respondent. Rather, his allegation is that sometime in 2016 till the date he wrote the letter, the Respondent started behaving very weird and aggressively towards him because of an unfounded allegation and suspicion that he was having extra-marital affairs.
The Petitioner filed this petition on 21/8/2019.
Again, the case of the Petitioner is that the Respondent has mental problem. That she is of unsound mind. That on 11/8/2019, he took the Respondent to a Psychiatric Hospital at Psychiatric Centre, Central Hospital, Warri, Delta State. The Respondent denied this allegation.
The law is that he who asserts must prove. In the instant case, the Petitioner failed woefully to discharge this onus.
1. He did not tender any medical report or certificate to show that the Respondent has mental problem or is of unsound mind.
2. He did not call any of the neighbours he claimed assisted him or helped him to take the Respondent to the hospital as a witness.
3. He tendered nothing from the purported hospital to show that he took her there for psychiatric evaluation and treatment.
4. By his own admission under cross-examination, he admitted that the Respondent is a staff of National Spill Detection and Response Agency till date.
5. There is nothing before me to show that since the marriage and within the period of 6 years before the filing of this petition, the Respondent has been confined for a period of, or for periods aggregating, not less than five years in a psychiatric institution.
6. Even if the Respondent is confirmed to be of unsound mind, which is not the true position in this case, there is no evidence to show that she is unlikely to recover.
By Section 16(1)(g)(i) and (ii) of the Matrimonial Causes Act, a Petitioner who relies on unsoundness of mind of the Respondent must satisfy the Court that the Respondent:
(i) Is, at the date of the petition, of unsound mind and unlikely to recover and
(ii) Since the marriage and within the period of six years immediately preceding the date of the petition, has been confined for a period of, or for periods aggregating, not less than five years in an institution where persons may be confined for unsoundness of mind in accordance with law, or more than one such institution.
In the instant case, the Petitioner clearly failed to satisfy the condition set out in Section 16(1)(g)(i) and (ii) of the Matrimonial Causes Act.
Furthermore, my careful observation of the demeanor of the parties in the witness box (i. e. the Petitioner as PW1 and the Respondent as DW1) showed the Respondent to be of a calm and peaceful disposition, while the Petitioner is clearly hyper-aggressive. Under cross-examination, when asked if he has ever received complaints that the Respondent has mental problem, he went on for over five minutes aggressively disparaging the Respondent in answer to the simple question. To me, considering his pugnacious and combative disposition towards the Respondent, it is the Petitioner that clearly needs psychiatric evaluation.
Finally on this issue, a look at the letter (Exhibit ‘C’) the Petitioner sent to Respondent’s elder brother before he filed this petition, clearly shows that the Petitioner did not accuse the Respondent of having mental problem in the letter. Rather, his accusation is that the Respondent started behaving very weird and aggressively towards him based on unfounded allegations and suspicion that he was having extra-marital affairs and secondly that the mother of the Respondent was interfering with their marriage. To me, the allegation that the Respondent is of unsound mind is a wicked devilish afterthought cooked up by the Petitioner just to do away with the Respondent.
Section 15(2) of the Matrimonial Causes Act, the Petitioner is a petition for a decree of dissolution of marriage must satisfy the Court of one of the facts or conditions in Section 15(2)(a) to (h) of the Matrimonial Causes Act before the Court can grant the decree.
In the instant case, the Petitioner has failed woefully to establish any of the conditions in Section 15(2) of the Matrimonial Causes Act. I hold therefore that the marriage between the parties has not broken down irretrievable. There is therefore no basis for me to grant a decree of the dissolution of the marriage.
On the custody and welfare of the innocent children of the marriage, the undisputed fact before me is that the Petitioner without the knowledge and consent of the Respondent – their mother moved the children from their matrimonial home and school in Warri, Delta State to an unknown place.
This to me is wrong. It is not in the best interest of the children. The Petitioner is hereby ordered to forthwith return the children to their Matrimonial home and re-enroll them in their former school in Warri, Delta State.
On the properties jointly owned by the parties, by Section 75(1)(2)(a) of the Matrimonial Causes Act, this Court cannot make any order with respect to the joint properties of the parties having dismissed the principal relief of the Petitioner for the dissolution of the marriage between the parties.”
(Bold font to emphasise some, not all, findings of fact not challenged in this appeal).
With the above findings, without any direct and specific challenge by way of grounds of appeal, there is certainty that the appellant’s appeal, brought before this Court, is merely a tourist. It has no serious purpose to serve other than to occupy shelf space. In the case of Bibilari v. Bibilari (2011) 13 NWLR (Pt. 1264) 207 at 233, the Court reminded us that the standard of proof in matrimonial causes is provided for in Section 82 of the Matrimonial Causes Act, which states that:
“For the purposes of the Act, a matter of fact shall be taken to be proved if it is established:
(a) To the reasonable satisfaction of the Court.
(b) Where a provision of the Act requires the Court to be satisfied of the existence of any ground or fact or as to any other matter, it shall be sufficient if the Court is reasonably satisfied of the existence of that ground or fact, or as to that other matter.
The law, as restated in the above-mentioned case is that where a specific statute, such as the Matrimonial Causes Act sets out circumstances when to hold a marriage has broken down irretrievably, the petitioner, who desires a dissolution of that marriage, must discharge the standard of proof stipulated by the Act and establish, in evidence, one of the facts set out under Section 15 and 16 of the same Act. In the many words deployed in argument of this appeal, the appellant has not been able to identify any instance when he was able to prove any of his allegations against the respondent. In a petition for dissolution of marriage, the petitioner must plead and prove that the marriage has broken down irretrievably. He must be able to bring himself within one or more of the facts enumerated in Section 15(2)(a)-(h) of the Matrimonial Causes Act before he can succeed in the petition. See Ekrebe v. Ekrebe (1999) 3 NWLR (Pt. 596) 514 and Akinbuwa v. Akinbuwa (1998) 7 NWLR (Pt. 559) 661.
Under cross-examination, when challenged about his abstinence from mentioning any of his inspired allegations, in the letter he tendered at the trial as Exhibit C, the appellant, queerly insisted that he mentioned those allegations in his letter (Exhibit C). Reading Exhibit C will place the appellant in the category of a purveyor of falsehood, even under oath.
By virtue of Section 32(1) of the Matrimonial Causes Act, where, in a petition for a decree of dissolution of marriage or in an answer to such a petition, a party to the marriage is alleged to have committed adultery with a specified person, whether or not a decree of dissolution of marriage is sought on the basis of that allegation, that person shall, except as provided by rules of Court, be made a party to the proceedings. The appellant who alleged that the respondent was involved in adulterous conduct with a “neighbour” did not even mention the name of the neighbour in his testimony. The lower Court found, as fact, that adultery was not proved.
In the case of Ibrahim v. Ibrahim (2007) 1 NWLR (Pt. 1015) 383, the Court advised that in matrimonial causes, it is highly desirable that the evidence adduced by parties is corroborated by evidence of independent witnesses. And in practice, the Courts do require such corroborative evidence, unless the absence of witnesses to provide such evidence has been satisfactorily accounted for. Furthermore, the need for corroborative evidence is far greater in undefended suits. At the trial before the lower Court, the appellant sought to prove his case with his own testimony, without calling other evidence. The lower Court found as a fact that, that made the appellant’s case unattractive to success.
The appellant alleged that the respondent is of unsound mind, which accounted for her intolerable behaviour in the marriage. As the lower Court rightly found, the appellant did not lead any evidence or call any witness in that regard. It was a lot of wind, without energy. In fact, the lower Court profoundly found that it was the appellant who has features or traits of health limitations, which he wrongly accused his wife of, and which would require medical attention. That was a finding on demeanour, which this Court, as an appellate Court cannot touch, because the lower Court was in a unique position to make that finding. In the case of Kwale v. State (2017) 9 NWLR (Pt. 1571) 399 at 423, this Court stated that a trial Court has a duty and the power to assess and evaluate evidence and determine credibility of witness, all relevant matters taken into account. A trial Court having the opportunity of hearing witnesses, and watching their demeanour in the witness box is entitled to select witnesses to believe or facts it finds proved. Thus, a trial Court is entitled to determine after listening to witnesses in the witness box, who to believe and who not to believe.
In the case of Ige v. Akoju (1994) 4 NWLR (Pt. 340) 535 at 543, the Supreme Court warned that while it is true that the demeanour of witness may not be a guide to the truth, the conclusions of a trial Judge on how a witness behaved in the witness box should not be lightly disregarded. In the case of Onuoha v. State (1998) 5 NWLR (Pt. 548) 118 at 137, this Court stated that the belief or non-belief of witnesses must come from the evidence adduced by the witnesses and in certain situations, their demeanour. While the former flows from an exercise of the judge’s mind, the latter flows from an exercise of the judge’s eyes, both giving rise to the judicious conclusion of the judge, in the total exercise of his wisdom.
In the case of Agbi v. Ogbeh (2006) 11 NWLR (Pt. 990) 65 at 115, the Court instructed that in ascribing probative value to the testimony of a witness, the Court takes into consideration whether the testimony is cogent, consistent and in accord with reason and in relation to other evidence before it. In the determination of the credibility of a witness, the demeanour, personality, reaction to question under examination are all factors to be taken into consideration. (P. 115, paras. A-B).
I have confirmed from the record of appeal, that the lower Court was justified in arriving at the conclusion that the appellant failed to prove the case he pleaded and pretended to have brought against the respondent.
The lower Court found as a fact that the case of the appellant is a ruse, intended to get rid of the respondent and that the marriage is beneath the standard of irretrievability, in the direction of its being broken down, which interprets to mean that the marriage is capable of being salvaged. In the case of Akinbuwa v. Akinbuwa (1998) 7 NWLR (Pt. 559) 661 at 669, the Supreme Court was emphatic that a petitioner for the dissolution of a marriage must prove one of the facts contained in Section 15(2)(a)-(e) of the Matrimonial Causes Act 1970 before such petition can succeed. Where the petitioner fails to prove that, the petition for the dissolution of a marriage will be dismissed, notwithstanding the fact that the divorce is desired by both parties.
The lower Court was justified in making the order of the dismissal of the petition, as it did.
The lower Court was justified in making the order of the return of the three children of the family to their natural habitat, with their mother and father, who still live together, as at the time of the filing of the petition and trial. In the case of Damulak v. Damulak (2004) 8 NWLR (Pt. 874) 151 at 170, the Court admonished that in all matters relating to custody and welfare of the child of the marriage, the dominant issue that calls for careful examination and consideration is the absolute interest of that child or those children. A child belongs with his or her parents, whenever there are no other established factors, which will cancel out such understanding Or approach.
The decision in Ugbah v. Ugbah (2009) 3 NWLR (Pt. 1127) 108 at 125-126, instructs that the Courts are reluctant to grant the main relief in a matrimonial cause, unless it is proved that the marriage (i.e. the sanctified union between a man and a woman for life and to the exclusion of all others) has broken down irretrievably. Thus, where the marriage can be retrieved, the parties (or the couple) are always encouraged to settle the matter and resume their conjugal relationship.
The judgment of the lower Court is a commendable and an apt exercise of judicial sight, judicial mind and discretion of that Court, directed at a just decision in the petition before it, which is unassailable. There is obviously no merit in the appellant’s appeal, which is hereby dismissed.
Appearances:
Ibieteta M. Jackreece, Esq. For Appellant(s)
Munachimso Asa Onwumere, Esq. For Respondent(s)
