ROBINSON EZEABAGBULEM v. DIANA EZEABAGBULEM
(2019)LCN/13892(CA)
In The Court of Appeal of Nigeria
On Thursday, the 2nd day of May, 2019
CA/OW/198/2014
RATIO
MATRIMONIAL CAUSES: NATURE OF MATRIMONIAL CAUSES PROCEEDINGS
The position of the law in my considered view, is clear that proceedings under the MCA are sui generis in that the MCA has its own set of rules the MCR. In this regard see also the case of ADEPARUSI V. ADEPARUSI (2014) LPELR 41111 (CA) wherein this Court per Akinbami, JCA stated thus:-
Divorce Proceedings are considered sui generis because they are not governed by the general rules of practice in pleadings but by the Matrimonial Causes Act and Rules specifically enacted to regulate them, the petitioner is required to strictly prove his averments in the petition irrespective of any admission by the Respondent to the petition. PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
WHETHER COURTS HAVE DISCRETION OVER MATRIMONIAL CAUSES MATTERS UNDER THE MATRIMONIAL CAUSES RULES
This is however not to say that the MCR like the civil procedure rules of various High Court of the Federation do not allow for the exercise of discretion by the lower Court in respect of non-compliance with the said MCR. See in this regard the case of MGBEAHURUIKE V. MGBEAHURUIKE (2017) LPELR ? 42434 (CA). However, as the position of the law is settled and consistent that issue of lack of jurisdiction, is a matter which cannot be regarded as an irregularity in any proceeding, it become very necessary that the issue of lack of jurisdiction on the part of the lower Court to have entertained the instant case (i.e. the cross-petition in which judgment was entered in favour of the Respondent) must be given due consideration or thoroughly investigated. PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
WHETHER PARTIES CAN BY THEMSELVES CONFER JURISDICTION ON A COURT
This is particularly so as it is a settled position of the law that parties by their acts of commission or omission cannot confer jurisdiction on a Court. See in this regard, the case of ODOGWU V. NWAJEI (2013) LPELR ? 21030 (CA) and that of ESEZOOBO V. SHABA (2017) LPELR ? 42713(CA) wherein this Court per Nimpar, JCA; stated thus: –?….. Can the question of jurisdiction be waived? Can parties confer jurisdiction on the Court by consent or waiver? The obvious answer is no. Parties have no choice in the issue of jurisdiction, it is beyond them and therefore cannot be waived since it is not a personal right. It is trite that a party cannot by acquiescence, waiver, submission or consent confer jurisdiction on a Court, a jurisdiction it has not got particularly for non fulfillment of a condition precedent as determined in the case of MADUKOLU V NKEMDILIM (1962) 2 SCNLR 341. See also NIGERCARE DEVELOPMENT COMPANY LTD V ADAMAWA STATE WATER BOARD (2008) LPELR ? 1997(SC) which held:
“Where an issue of competence or jurisdiction of a Court, is fundamental and crucial, the issue of waiver, cannot be of any moment.” See also ONYEMA V OPUTA (1987) 3 NWLR (PT 60) 259; DUNG V GYANG (1994) 8 NWLR (PT.362); (1994) LPELR- 14612(CA).
A waiver can occur where the suit was commenced by an irregular procedure and a party takes a step without complaining but not where a condition precedent was not fulfilled as required. PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
MATRIMONIAL CAUSES:JURISDICTION OF A COURT TO HEAR A MATRIMONIAL MATTER: WHERE THE GROUNDS FOR BRINGING A VALID PETITION UNDER THE MATRIMONIAL CAUSES ACT ARE NOT APPLICABLE UNDER A PARTICULAR CASE
The other aspect of the challenge to the jurisdiction of the lower Court to have entertained the instant case, is that none of the grounds for the bringing of a valid petition under the MCA was applicable in the instant case. I cannot but note that the Respondent did not respond to this aspect of the challenge to the jurisdiction of the lower Court. This is more so when the lower Court somehow re-confirmed in its judgment that it struck out the Appellant?s petition and saved the cross-petition apparently because it had previously held that Section 30(2) of the MCA exempts a cross-petition such as the one filed by the Respondent from the 2 year rule. Suffice it to say that given my finding that the cross-petition filed in the instant case is not known to the MCA or MCR, it follows that the Respondent could not have brought her cross-petition pursuant to any of the provisions of the said MCA. Aside from this, I cannot but say that I am totally dumbfounded that the lower Court having in the cause of the proceedings found the Appellant?s petition to have been initiated in non-compliance with a condition precedent for its institution could have properly found the so called cross-petition of the Respondent worthy of any consideration save than to have struck out the same. PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
WHEN A COUNTER-CLAIM WOULD BE STRUCK OUT BECAUSE THE ORIGINATING PROCESS IT IS FOUND ON IS DEFECTIVE
I hold this view against the backdrop of the position of the law that a counter-claim even though an independent action, founded on an originating process that is found to be defective, necessarily has to be struck out as the main action, in which it is founded. See in this regard, the case of ABERUAGBA V. OYEKAN (2018) LPELR ? 43669 (CA) wherein this Court per Owoade, JCA; said thus:-
A Counter-Claim on the other hand is said to be a separate and independent claim, not as a matter of action but in relation to proof and distinct treatment in adjudication. A Counter-Claim is a separate and independent Claim in the same action with the Plaintiff’s Claim. Thus the above rule of Law which treats the Counter-Claim as a separate and distinct claim, does not save the Counter-Claim when the Court is deprived of jurisdiction to entertain the main claim.?
PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
Before Their Lordships
AYOBODE OLUJIMI LOKULO-SODIPEJustice of The Court of Appeal of Nigeria
ITA GEORGE MBABAJustice of The Court of Appeal of Nigeria
IBRAHIM ALI ANDENYANGTSOJustice of The Court of Appeal of Nigeria
Between
ROBINSON EZEABAGBULEM Appellant(s)
AND
DIANA EZEABAGBULEM Respondent(s)
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the Leading Judgment): The appeal is against the judgment delivered on 2/5/2013 by the High Court of Justice, Imo State, holden at Mgbidi; presided over by Hon. Justice K.A. Ojiako (hereafter to be simply referred to as ?the lower Court? and ?learned trial Judge? respectively). The matter in which the lower Court delivered its judgment now on appeal, is a cross-petition for the dissolution of marriage initiated by the Respondent in the answer to the petition for the dissolution of the same marriage filed by Appellant on 1/9/2009, under the Matrimonial Causes Act (hereafter to be simply referred to as ?MCA?). In the petition filed by the Appellant, he sought for the dissolution of the marriage contracted by him and the Respondent on 26/12/2007, on the ground that the said marriage has broken down irretrievably; in that the Respondent has since the marriage behaved in such a way that he (Appellant) cannot reasonably be expected to live with the Respondent. The facts relied upon by the Appellant as constituting the grounds of the petition as contained therein are:
(a) The petitioner is a businessman and travels out of the country to carry out his business. On 22/4/09 petitioner was away in Lagos on a business trip the respondent brought an unknown person into the bedroom of the petitioner and they made away with valuables which the petitioner just brought back from his overseas trip the respondent also took along with her the only child of the marriage and since then not returned to the matrimonial home.
(b) The respondent had on more than occasion left home to undisclosed destination with her belongings and petitioner feels insecured (sic) by these asconding (sic) from home and coming back whenever the respondent spends the things she stole from petitioner.
(c) The respondent has been having extramarital relationship and any time petitioner confronts her she informs her male friends who in turn will start calling the petitioner on phone threatening his life.
(d) Recently petitioner paid N900,000.00 into the account of the respondent and when petitioner asked for the said money respondent threatened violence.
The Respondent filed an answer to the petition on 29/10/2009.
Therein she controverted the case set up by the Appellant in his petition. In paragraph 7 of the answer, the Respondent averred to the effect that the Appellant since the marriage has behaved in such a way that she cannot be reasonably expected to live with him and incorporated by reference the facts set out in paragraph 7(i)-(viii) of the answer as the basis for the assertion. The facts in the said paragraph 7(i)-(viii) read thus: –
?7. In reply to the said paragraph, the Respondent avers that since the marriage, the Petitioner has behaved in such a way that the Respondent cannot reasonably be expected to live with the Petitioner and the facts upon which the above assertion is made are as follows:
(i) After the parties wedding at the Cathedral of Transfiguration of our Lord, Owerri, the Petitioner called the Respondent and gave her what he called ?RULES AND REGULATIONS? which include the following:
(a) That none of the Respondent?s relations including her parents and blood brothers should ever visit their matrimonial home for any reason whatsoever.
(b) The Respondent should not keep friends or visit any body whilst still his wife.
(c) Should not make phone calls to any body without his express permission or received phone calls.
(d) When the Respondent demanded to know why she should be treated as a slave, the Petitioner resorted to beating her up.
(ii) When the Petitioner noticed that the Respondent was pregnant, he called her and warned her that if she delivers that her money (sic) should not come to take care of her and the baby (Omugwo) and when the Respondent opposed this directive, the Petitioner again beat her up which made the Respondent to run back to her maiden home where she stayed for sometime before coming back to their matrimonial home.
(iii) When the Respondent came back to her matrimonial home, the Petitioner locked her out of her room and restricted her to the Guestroom where she stayed for 3 days without food and it was the intervention of his relations that made him to allow the Respondent access to the main house.
(iv) The Petitioner refused bluntly to pay the Respondent?s school fees as a University undergraduate, but stated that the only condition which would make him pay same is if the Respondent writes to him stating that her parents are poor and indigent and so cannot train her. The Respondent refused bluntly to do any such thing as it was her parents who had been training her before she got married to the Petitioner.
(v) When the Petitioner went back to his base in Japan, he refused to send any feeding money to the Respondent and refused to send money for her ante natals and ever stopped their commercial bus driver from rendering account to the Respondent so that the Respondent who was then pregnant would die of hunger.
(vi) Following all the beatings and other cruel treatments meted out to the Respondent by the Petitioner, the Respondent had to deliver her baby on the 7th month as a pre-mature baby.
(vii) Two days after the Respondent came back with her baby from the hospital,the Petitioner without first confirming with the Respondent bought a baby milk SMA Gold and asked the Respondent to be feeding the baby with same when to his knowledge the baby is on exclusive breast feeding. The Petitioner further stated that he does not want his baby to suck the Respondent?s breast and when the Respondent objected, the Petitioner started beating her up, knocked her down, tied her two hands and dragged her into a room and locked her up and also locked the baby in another room.
(viii) Following the intervention of his relations, the Petitioner unlocked the doors after a day and thereafter chased the Respondent and the baby out of the house and they stayed out in the cold for two days after which the Respondent left for her maiden home from where she travelled to the Cameroon where she and her baby are now receiving medical treatment.?
The Respondent cross pe
