OBIATUEGWU v. OBIATUEGWU (2021)

OBIATUEGWU v. OBIATUEGWU

(2021)LCN/15525(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Friday, May 07, 2021

CA/A/866/2018

Before Our Lordships:

Rita Nosakhare Pemu Justice of the Court of Appeal

Hamma Akawu Barka Justice of the Court of Appeal

Ebiowei Tobi Justice of the Court of Appeal

Between

CHIEMELE OBIATUEGWU (Nee Onwasigwe) APPELANT(S)

And

KENENNA OBIATUEGWU RESPONDENT(S)

 

HAMMA AKAWU BARKA, J.C.A. (Delivering the Leading Judgment): At the initial stage, love joined two young Medical Practitioners, Dr. Kenenna Obiatuegwu of Sally-Best Estate, Lugbe Abuja to Dr. Chiemele Onwasigwe, now of the College of Medicine, University of Nigeria Teaching Hospital, Ituku-Ozalla, Enugu State. On the 10th day of August, 2013, the two Medical Practitioners yielded to their hearts’ desire when they eventually got married at the Cathedral of Good Shepherd Independent Layout, Enugu.

Records show that the Petitioner after the marriage continued to live in Abuja, the nation’s capital city, while his wife the respondent lived with her parents in Enugu. Things got sour in the course of the marriage, leading the Appellant on the 6th of October, 2017 to initiate a petition for a decree of judicial separation over the marriage contracted between the parties as afore stated, before the Enugu State High Court sitting in Agboni in petition No HAGB/73D/2017; Dr. (Mrs.) Raluchukwu C. Obiategwu (nee Onwasigwe) Vs. Kenenrra Obiategwu. While proceedings were still ongoing before the Enugu State High Court, the Respondent herein, filed yet another petition before the High Court of the Federal Capital Territory Abuja, this time, for the dissolution of the marriage.

Appellant on being served the fresh petition entered conditional appearance before the Abuja High Court, along with a Notice of preliminary objection in which she contended that the latter petition was an abuse of the earlier petition and ought therefore to be dismissed. The Court heard arguments with respect to the preliminary objection and on the 21st of June, 2018, dismissed the said preliminary objection.

Dissatisfied with the ruling of the lower Court wherefore her preliminary objection was dismissed, Appellant filed a Notice of Appeal on the 18th of July, 2018, predicated on three grounds. The extant Notice of Appeal is the Amended Notice of Appeal filed on the 24/9/18, deemed filed on the 19th of October, 2020 with the leave of Court granted on the same date. The grounds of appeal and their particulars are reproduced as follows:
GROUND ONE
The learned trial judge erred in law when he assumed jurisdiction to hear and determine this suit.
PARTICULARS OF ERROR
1. The appellant had hitherto on 6th October, 2017 initiated a petition for decree of judicial separation in a marriage celebrated between the parties, among other sundry reliefs before the High Court of Enugu State, holden at Agbani in petition no. HAGB/73D/2017: DR (Mrs) Ralichukwu C. Obiategwu (nee Onwasoigwe) v DR Kenenna Obiategwu.
2. The appellant caused a copy of the said petition and accompanying processes, along with the interlocutory application for custody of the 3 (three) children of the marriage to be served on the petitioner on 17th November, 2017.
3. Upon the service of suit no. HAGB/73D/2017, on the petitioner, the petitioner participated in the same proceedings before the Court through his counsel R.C. Ohalebo Esq.
GROUND TWO
The learned trial judge erred in law when he held that suit no. PET/054/2017: Dr. Kenenna Obiategwu and Dr. Chiemele Obiategwu is not an abuse of Court processes.
PARTICULARS OF ERROR
1. The appellant entered conditional appearance and contended both in her preliminary objection and further affidavit that in support filed on 15/1/2018 respectively that suit no. PET/054/2017; Dr. Kenenna Obiategwu and Dr. Chiemele Obiategwu, is an abuse of Court process having regard to the pendency of suit no. HAGB/73D/2017: Dr. (Mrs.) Raluchukwu C. Obiategwu (nee Onwasoigwe) vs. Dr. Kenenna Obiategwu; earlier in time at the High Court of Enugu State.
2. The subject matter/res in both parties are the same.
3. The objection raised by the appellant was predicated on the ground that it would be prejudicial to her to pursue the same matrimonial cause in two Courts at the same time.
GROUND THREE
The ruling of the trial Court is against the weight of evidence adduced.
GROUND FOUR.
ERROR OF MIXED LAW AND FACTS.
The Court below misdirected itself in law and in facts when it held that the petition at the Court below was not an abuse of Court process as Section 44 (1) of the Matrimonial Causes Act allowed the Respondent maintain the petition for dissolution of marriage alongside with petition for judicial separation.
PARTICULARS OF ERROR
i. It is not in doubt that petition for judicial separation and the petition for dissolution of marriage can be maintainable by the parties. The initiation of one cannot be a bar to the initiation of the other, vide Section 44(1) of the Matrimonial Causes Act.
ii. The fact of prior existence of petition for judicial separation at High Court of Enugu State in petition no. HAGB/730/2017 between the parties ought to weigh on the later petition no. Pet/054/2017 being initiated before the same Court.
iii. Further, same relief of custody of children being sought in the earlier petition at High Court of Enugu State was replicated at the Court below which also sounds an abuse of Court process.
iv. Gravamen of Section 44(1) of the Matrimonial Causes Act does not lend itself to or justify the multiplicity of petition but only prescribed that initiation for either petition of judicial separation or petition of dissolution of marriage does not bar or estop the other.

The appeal was subsequently entered to this Court on the 24/09/2018, wherefore Appellant filed in a brief of argument on the 17/10/2018 settled by Chief G. Tagbo Ike.
In opposing the appeal, Respondent on the 1st of November, 2018 also filed a brief settled by Emmanuel I. Esene.

​The appeal was heard on the 16th of February, 2021, being the scheduled hearing date. E. I. Esene of learned counsel for the Respondent identified the brief filed by him, adopted the same and urged the Court to dismiss the appeal. The Appellants counsel though served hearing notice, failed to appear, and having earlier filed the Appellant’s brief, the Court invoked the provisions of Order 19 Rule 9 (4) of the Court of Appeal Rules 2016, and thereby deemed the Appellant’s appeal as having been argued.

In the appellant’s brief, and at page 2 thereof, a sole issue was identified for resolution as follows:-
Whether petition no. PET/054/2017: DR KENENNA OBIATEGWU AND DR CHIEMELE OBIATEGWU is an abuse of Court process and liable to be dismissed?

Also at page 2 of the Respondent’s brief, Learned Counsel, appearing for the Respondent adopted the issue crafted by the Appellant in the resolution of the appeal word for word. I have no hesitation therefore adopting the said issue in the resolution of the instant appeal.
Whether PET/054/2017: DR KENENNA OBIATEGWU and DR CHIEMELE OBIATEGWU is an abuse of Court process and liable to be dismissed?

​The appellant proffered arguments on the issue from pages 2 – 8 of the brief, the sum of which is that petition no. PET/054/2017 DR Kennna Obiategwu and DR Chiemele Obiategwu is abusive of the earlier petition between the same parties, and over the same cause pending at the High Court of Enugu State, holden at Agbani in petition no. HAGB/73D/2017: DR (MRS) R.C. Obiategwu vs. DR K Obiategwu.

Learned Counsel referred to the cases of Saraki Vs. Kotoye (1992) 9 NWLR (Pt. 264) 156 and Ogoejeofo vs. Ogoejeofo (2006) 3 NWLR (Pt. 966) 205 on what constitutes abuse of Court process as including:
i. Instituting multiplicity of actions on the same subject matter against the same opponent on the same issue;
ii. Instituting different actions between the same parties simultaneously in different Courts even though on different grounds.
iii. Use of two similar processes in the exercise of the same rights.
iv. Where there is no law supporting a cause process or where it is premised on frivolity or recklessness.

​Learned Counsel then alluded to the earlier petition filed before the Enugu State High Court seeking for judicial separation of the marriage and custody of the three children, which was to the knowledge of the respondent herein, and the subsequent petition before the lower Court, contending that both Courts being of coordinate jurisdiction and the parties and subject matter the same, the latter petition constituted an abuse to the earlier one filed.

He also drew the attention of the Court to the provision of Section 44 (1) of the Matrimonial Causes Act, stating that the reliefs of judicial separation and that of the dissolution of marriage are the same.

Learned Counsel further contended that where two or more actions between the same parties in respect of the same subject matter is being sought in one or more Courts, such amounted to an abuse of Court process and cited the cases of Ikine vs. Edjerode (2001) 18 NWLR (Pt. 745) 446 at 479, Dingyadi vs. INEC no. 2 (2010) 18 NWLR (Pt. 1124) 1 at 74, N.I.M.B Ltd. vs. UBN Ltd. (2004) 12 NWLR (Pt. 888) 599 in support of the submission.

He faulted the lower Court’s reliance on its interpretation of Section 44 (1) of the Matrimonial Causes Act, contending that nothing stopped the two reliefs being contended upon before the earlier Court. Further still, counsel submitted that the Court below failed to comment on the relief of the custody of children of the marriage sought before the two lower Courts.

He therefore, based on the totality of his submissions, urged this Court to hold that the later Court be enjoined from proceeding so as to prevent collusion or confusion between the two Courts.

The response of the learned counsel for the respondent can be seen at pages 2 – 6 of the respondents brief, wherein Learned counsel referred to the cases of Ladoja Vs. Ajimobi (2016) 10 NWLR (Pt. 1519) 87 per Ogunbiyi JSC, Mabamije vs. Otto (2016) 13 NWLR (Pt. 1529) 171 per Rhodes-Vivour JSC, on the concept of abuse of Court process.

Learned Counsel similarly alluded to the two petitions filed by the parties differently, contending that the subject matter in the two petitions are not the same. He argued that the interpretation given to Section 114 of the Matrimonial Causes Act in their argument is misconceived, and referred to Section 41 of the same Matrimonial Cause Act and Section 44 (1) of the same Act urging the Court to give Section 44 (1) of the Act its rightful interpretation as demanded in Faleke Vs. INEC (2016) 18 NWLR (Pt. 1543) 61 per Kekere-Ekun JSC and Dankwambo vs. Abubakar (2016) 2 NWLR (Pt. 1495) 157.

Learned Counsel on the whole urged the Court to hold that respondent’s petition before the Abuja High Court is not an abuse of Court process and to thereby dismiss the appeal.

The issue that resolves the instant appeal turns on a very narrow lane. It is whether the latter petition filed by the respondent before the Abuja High Court constituted an abuse of process of Court against the earlier petition filed before the Enugu State High Court by the appellant. Interestingly both parties did not dispute the existence of the two petitions filed against each other in two different Courts. While appellant contended that the latter petition constituted an abuse of judicial process, respondent herein contended that his petition filed later in time which argument the lower Court agreed with him, does not constitute any abuse of process owing to the provision of Section 44 (1) of the Matrimonial Cause Act.
The case of Ladoja Vs. Ajimobi (supra) which dealt with the concept of abuse of Court process, held that:
“The concept of abuse of judicial process is imprecise. It involves circumstances and situations of infinite variety and conditions. Its common feature is the improper use of the judicial process by a party in litigation to interfere with the due administration of justice. It is recognized that the abuse of the process may be in both a proper or improper use of the judicial process in litigation. But the employment of judicial process is only regarded generally as an abuse when a party improperly uses the issue of the judicial process to the irritation and annoyance of his opponent, and the effective administration of justice. This will arise in instituting a multiplicity of actions on the same subject matter against the same opponent on the same issues.”
Also in Mabamije V. Otto (2016) 13 NWLR (Pt. 1529) 171 S.C, the Supreme Court per Rhodes-Vivour JSC stated thus:
“It amounts to an abuse of process when a party improperly uses the judicial process to the annoyance of the other party. That is proceedings that are not bonafide, that are frivolous vexatious or oppressive. Also instituting multiplicity of actions on the same subject matter against the same opponent on the same issue would amount to an abuse of Court process. In the instant case, the filing of this suit on the same facts and asking for the same reliefs as in suit No: W/61/2000 amounted to an abuse of process. Moreover, the appellant had discontinued suit no: W/61/2000, because she was satisfied with the furnishing of her house by the respondent.”
And further in Dingyadi VS INEC no. 2 (supra), per MUHAMMAD JSC, having summed up the law thus:
“To institute an action during the pendency of another one claiming the same reliefs amounts to an abuse of Court process, and it does not matter whether the matter is an appeal or not, as long as the previous action has not been finally decided … the abuse lies in the multiplicity and manner of the right rather than the exercise of the right per se. The subsequent action would constitute an abuse of process of the Court where an abuse occurs, the Courts do not take it lightly as it is not merely irregularity. It is a much more fundamental vice which is usually punished with dismissal. It is rooted in public policy as expressed in the latin maxim “nemo debet bis vexari pro una et codem causa” i.e. no one shall be subjected to defend the same cause twice.”<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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See further on the concept of abuse of Court process, the case of Saraki vs. Kotoye (1992) LPELR – 3016 (SC).

No doubt the Courts have always frowned on pursuing the same matter before two Courts of coordinate jurisdiction. Pats-Acholonu JSC was heard to have said in N.I.M.B Ltd. VS. UBN Ltd. (supra) that:-
“I fail to see the exceptional circumstance that would warrant a Court to naively appear to sit on appeal in a ruling of a Court of the same co-ordinate jurisdiction. The institution of the two Courts is not meant that they should be perpetually at war but to stand shoulder to shoulder in order to realize the intention and wisdom of the eminent men-jurists, political scientist and other people of great learning and intelligence who gave us the constitution.”
This admonition was replicated by Ejiwunmi JSC, in his contribution on the issue, and is heard as saying that:
“Where a Court was clearly aware that another Court of coordinate jurisdiction is seised of a case with the same parties and the same subject matters before it as found in this appeal, it is an abuse of process for that Court to continue with the hearing of the case and proceed to make orders as was done in this case. It is my humble view that in the instant case, the Court is not only to blame, but the legal practitioner who instituted the actions that had brought about his unfortunate situation.”

The pertinent question upon which this appeal revolves as rightly pointed out is the import of the interpretation to be given to Section 44(1) of the Matrimonial Act, which provided that:
“A decree of judicial separation shall not prevent the institution by either party to the marriage of proceedings for a decree of dissolution of marriage.”
The lower Court faced with the obvious task of giving meaning to the section of the law, reproduced, alluded to the two petitions filed by the two combatants, and further alluded to the provisions of Section 44 (1) of the Matrimonial Causes Act, 1970, and ruled that:
“It is trite that where the language, terms intent or words to any part or section of a written contract, document or enactment are clear and unambiguous as in the instant case, they must be given their ordinary and actual meaning as such terms or words used best declare the intention of a law maker unless this would lead to absurdity or be in conflict with some other provision thereof. Olatunde vs. Obafemi Awolowo University (1998) 5 NWLR (pt. 549) 178. From the above therefore, it is obvious that the Petitioner can maintain the petition, I so hold.”

I now ask myself, whether the lower Court in dismissing the preliminary objection filed by Appellant, gave the proper interpretation to the section under focus? It is trite law that the primary rule of interpretation is usually the liberal construction of the words used by the legislature, giving them, their ordinary grammatical meaning. See Ngige vs. Obi (2006) 14 NWLR (pt. 999) 209. The clear reason for so doing is that the ordinary grammatical meaning best captures the intention of legislature. See Bronik Motors vs. Wema Bank (1983) LSCLR 296, Ojukwu vs. Obasanjo (2004) FWLR (pt. 222) 1666, Olatunde vs. Obafemi Awolowo University (1998) 5NWLR (pt. 549) 178, Olanrewaju vs. Governor of Oyo State (1992) NWLR (pt. 265) 335, AG Ogun State vs. Alh. Atinuke Ayinde Aberuagba (1985) NWLR (pt. 3) 395.

In any case, by the clear wordings of Appellant’s ground 4, it does appear that Appellant does not contend the fact that by Section 44 (1) of the Matrimonial Causes Act, the respondent is not precluded from initiating his action seeking for the dissolution of the marriage, but rather that one petition ought to have weighed on the other. I have carefully examined the submissions of learned counsel, and in the circumstance considered the two petitions filed by the parties differently and also considered the provisions of Section 44 (1) of the Matrimonial Causes Act 1970. There appears to be no doubt in my mind that the two petitions filed, though between the same parties, with the former being for separation, while the latter seeking for dissolution of the marriage. In other words, the reliefs being sought by the parties are completely different, and do not come under the ambit of the cases cited on the issue. The consequence is that the Respondent was right in asserting that the reliefs sought by the two parties being completely different, he had the liberty allowed by Section 44(1) of the Act to initiate the petition the way he did. It is possible as contended by the Appellant that Respondent could have filed a cross action to the petition filed before the Enugu State High Court, and/or filed the instant petition before the same Court for convenience, and allowing the Enugu High Court resolving the two petitions before the same Court, but must be quick to add that the act of the Respondent opting to file his petition before the latter Court cannot be said to translate to an offence against the principle of abuse of Court process, more so when by the provisions of Section 44(1) of the Matrimonial Act, the fact that a petition for separation being pending, does not act as bar or preclude the institution of a petition for the dissolution of the marriage, and by doing so does not, and cannot translate to an abuse of Court process. The lower Court and the learned counsel for the respondent were right in the circumstance contending and thereby ruling against the Appellant’s preliminary objection. And I so hold.

The other contention by Appellant is that the lower Court failed to consider the issue of the custody of children appearing in both petitions. Undoubtedly the issue appears secondary, and the failure of the Court to consider the issue cannot invalidate the decision reached.

​In the event, I find the appeal unnecessary, wasteful and lacking in any merit. It is hereby dismissed by me. By this decision, it is now left for the parties to activate that spirit that galvanized them in the first place to marry, to also resolve the ugly issues bedeviling them.
APPEAL DISMISSED.

RITA NOSAKHARE PEMU, J.C.A.: I had read before now, the lead judgment just delivered by my brother HAMMA AKAWU BARKA, JCA.
I agree with his reasoning and conclusions.
I have nothing more to add.
The appeal lacks merit. It is dismissed by me.

EBIOWEI TOBI, J.C.A.: The appeal borders on the lower Court dismissal of the notice of preliminary objection raised by the Appellant against the action filed by the Respondent against the Appellant for the dissolution of the marriage between him and the Appellant. The action was filed in the Abuja high Court.

The preliminary object was raised on the premise that the Appellant in the Enugu High Court had earlier filed an action against the Respondent for Judicial separation of the couple. The appellant is of the view that this amounted to abuse of Court process. The lower Court relying on Section 44 of the MCA held that the case in Abuja does not constitute an abuse of the process of Court.

My learned brother, H.A. Barka, JCA in my view has adequately addressed the law on what will amount to abuse of Court process. I will just add a case or two of mine. The law is settled that if there is an abuse of the Court process, that is misusing the process of Court in such a way that irritating and annoying to the other party, the case filed later in time will be dismissed as it is the process which constitutes the abuse. See Ladoja vs Ajimobi (2016) 10 NWLR (pt. 1519) 88; PML (Nigeria) Limited vs FRN (2018) 7 NWLR (pt. 1619) 448; Lokpobiri vs Ogola & Ors (2015) 10-11 S.C. (pt 11) 102. On the strength of the cases above and for the fuller reasons advanced by my learned brother stated in the lead judgment just delivered which I had the opportunity to read in draft, I also dismiss the appeal as lacking in merit.

Appearances:

E. I. ESENE, with him, IJEOMA MADU For Appellant(s)

…For Respondent(s)