ROSIJI v. ROSIJI (2020)

ROSIJI v. ROSIJI

(2020)LCN/15394(CA)

In The Court Of Appeal

(IBADAN JUDICIAL DIVISION)

On Wednesday, October 28, 2020

CA/IB/173/2018

RATIO

COMPETENCE OF COURT: WHETHER AN APPELLATE COURT MAY INTERFERE WITH THE DISCRETIONARY ORDEER OF A TRIAL COURT

JUDGMENT OF COURT: DETERMINING WHETHER A DECISION OF A COURT IS PERVERSE

A decision of a Court is perverse when it is not supported by the evidence before it or when the trial judge took into account matters which he ought not to and shut his eyes to the obvious. See ATOLAGBE VS. SHORUN (1985) 1 NWLR (PT. 2)360; JOLAYEMI VS. OLAOYE (2004) 2 NWLR (PT. 887) 322 AND ONU VS. IDU (2006) 12 NWLR (PT. 995) 657. PER FOLASADE AYODEJI OJO, J.C.A.

WORDS AND PHRASES: “DISCRETION”

“Discretion” is the power to decide what should be done in a particular situation. A Court must however exercise its discretion both judicially and judiciously. A sound exercise of judicial discretion must always meet the ends of justice and must not flow from or be bound by a previous decision of another Court in which discretion was exercised. It must be exercised based on the facts before the Court in the case under consideration. See AKINYEMI VS. ODUA INVESTMENT COMPANY LIMITED (2012) 17 NWLR (PT. 1329)209; UNION BANK OF NIGERIA PLC VS. ASTRA BUILDERS (W.A.) LIMITED (2010) 5 NWLR (PT. 1186) 1; OYEYEMI VS. IREWOLE LOCAL GOVERNMENT, IKIRE (1993) 1 NWLR (PT. 270) 462. IN AJUWA VS. SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LTD (2011) 18 NWLR (PT. 1279) 797, the Supreme Court held as follows:
“I have searched for the meaning of the word ‘Judicial discretion’ in Black’s Law Dictionary 8th Edition edited by Bryan Gerner at page 409,the word or phrase was defined as follows:
“The exercise of judgment by a judge or Court based on what is fair under the circumstances and guided by the rules and principles of law, a Court’s power to act or not to act when a litigant is not entitled to demand the act as a matter of right.
In the New International Comprehensive Dictionary of the English Language – Encyclopedia Edition at page 365, the word “discretion” was defined as – “The act or liberty of deciding according to justice and propriety, and one’s idea of what is right and proper under the circumstances without willfulness or favour.”
Judicial discretion is judicially and judiciously exercised where it is exercised based on relevant facts placed before the Court. The burden to place all material facts before the Court is on the party seeking such discretion. See DONGTOE VS. CIVIL SERVICE COMMISSION, PLEATUE STATE (2001) 9 NWLR (PT. 717) 132; GENERAL & AVIATION SERVICES LIMITED VS. THAHAL (2004) 10 NWLR (PT. 880) 50 AND MENAKAYA VS. MENAKAYA (2001) 16 NWLR (PT. 738) 203. PER FOLASADE AYODEJI OJO, J.C.A.

WORDS AND PHRASES: “SUBJECT TO”

It is clear from the above that a person who is desirous of instituting a Matrimonial Cause is at liberty to do so at any High Court of any of the States in Nigeria. This is however subject to other provisions of the Act. The phrase “subject to” is a form of limitation of the provisions where it is used. It means that some succeeding or later provisions in the Act controls the provisions of the Section concerned. See TEXACO PANAMA INCORPORATION VS. SHELL PETROLEUM DEVELOPMENT CORPORATION OF NIGERIA (2002) 5 NWLR (PT. 759) 209; EBHOTA VS. PLATEAU INVESTMENT AND PROPERTY DEVELOPMENT COMPANY LIMITED (2005) 15 NWLR (PT. 948) 266 AND OLORUNTOBA OJU VS. ABDUL RAHEEM (2009) 13 NWLR (PT. 1157) 83. In NIGERIA DEPOSIT INSURANCE CORPORATION VS. OKEM ENTERPRISES LIMITED (2004) 10 NWLR (PT. 880) 107, the Supreme Court per Uwaifo JSC held as follows:
“It must therefore be understood that “subject to” introduces a condition, a restriction, a limitation, a proviso see OKE VS. OKE (1974) 1 ALL NLR (PT. 1) 443 AT 450. It subordinates the provisions of the subject section to the section empowered by reference thereto and which is intended not to be diminished by the subject section, see LSDPC VS. FOREIGN FINANCE CORPORATION (1987) 1 NWLR (PT. 50) 413 AT 461; AQUA LTD. VS. ONDO STATE SPORTS COUNCIL (1988) 4 NWLR (PT. 91) 622 AT 655.
The expression generally implies that what the section is subject to shall govern, control and prevail over what follows in that subject section of the enactment, so that it renders the provision to which it is subject to condition upon compliance with or adherence to what is prescribed in the provision referred to. SEE TUKUR VS. GOVERNMENT OF GONGOLA STATE (1989) 4 NWLR (PT. 117) 517 AT 542, 565, 580; IDEHEN VS. IDEHEN (1991) 6 NWLR (PT. 198) 382 AT 148; LABIYI VS. ANRETIOLA (1992) 8 NWLR (PT. 258) 139 AT 163-164.”
It follows therefore that the application of Section 2(1)(a) of the Matrimonial Causes Act is dependent on other provisions of the Act.
Section 9(2) of the Matrimonial Causes Act provides as follows:
“Where it appears to a Court in which matrimonial cause has been instituted under this Act (including a matrimonial cause in relation to which subsection (1) of this section applies) that it is in the interest of justice that the matrimonial cause be dealt with in another Court having jurisdiction to hear and determine that cause, the Court may transfer the matrimonial cause to the other Court.” PER FOLASADE AYODEJI OJO, J.C.A.

APPEAL: PRELIMINARY OBJECTION: WHETHER A PRELIMINARY OBJECTION MUST BE MOVED BEFORE THE COMMENCEMENT OF HEARING OF AN APPEAL

Where a Respondent incorporates a preliminary objection in his Brief of Argument it is a mere expression of his intent. His counsel must at the hearing of the appeal seek leave of Court to move the objection before the commencement of hearing of the appeal. Where counsel fails to so do, the objection is deemed to have been waived and abandoned. See TIZA VS. BEGHA(2005) 15 NWLR (PT. 949) 616; NIGERIAN LABORATORY CORPORATION VS. PACIFIC MERCHANT BANK LTD. (2012) 15 NWLR (PT. 1324) 5050; REGISTERED TRUSTEES OF THE AIRLINE OPERATORS OF NIGERIA VS. NIGERIAN AIRSPACE MANAGEMENT AGENCY (2014) 8 NWLR (PT. 1408) 1. In AGBAREH VS. MIMRA (2008) 2 NWLR (PT. 1071) 378 AT 425 PARAS B-D, the Supreme Court Per Ogbuagu JSC held as follows:

APPEAL: WHETHER THR FILING OF AN APPELLANT’S REPLY BRIEF IS MANDATORY

Filing of an Appellant’s Reply Brief is not mandatory. It is only necessary where new points are raised in the Respondent’s brief to which the Appellant wish to respond. The new points must be such that were not contemplated and were not argued in the Appellant’s Brief of Argument. It is not an opportunity for the Appellant to extend the scope of his Argument or raise issues not dealt with in the Respondent’s Brief of Argument. Where an Appellant chooses to use a Reply Brief to reargue or widen the scope of submissions already canvassed in his substantive Brief of Argument, such reply brief would be discountenanced. See MAKWUNYE VS. IMOUKHUEDE (2019) 13 NWLR (PT. 1690) 439; EZEANOCHIE VS. IGWE (2020) 7 NWLR (PT. 1724) 430 AND ABDULKADIR VS. MOHAMMED (2019) 12 NWLR (PT. 1687) 450. PER FOLASADE AYODEJI OJO, J.C.A.

Before Our Lordships:

Jimi Olukayode Bada Justice of the Court of Appeal

Haruna Simon Tsammani Justice of the Court of Appeal

Folasade Ayodeji Ojo Justice of the Court of Appeal

Between

MRS. MOPELOLA ROSIJI APPELANT(S)

And

OLAJIDE O. ROSIJI RESPONDENT(S)

FOLASADE AYODEJI OJO, J.C.A. (Delivering the Leading Judgment): This appeal is against the interlocutory decision of the Ogun State High Court sitting in Ota in SUIT NO: HCT/730/2017 delivered on 19th February, 2018.

Briefly, the facts that gave rise to this appeal are that the Respondent as Petitioner filed a Petition for the dissolution of his marriage to the Appellant before the lower Court on the ground that the marriage had broken down irretrievably. The Petition was served on the Appellant vide substituted means pursuant to an order of Court. Upon being served with a copy of the petition, the Appellant filed a motion on notice wherein she sought for an order transferring the Petition to Lagos State High Court from the Ogun State High Court where it was filed. The Respondent contested the Application. The learned trial judge heard the application and refused same.

Dissatisfied with the decision of the lower Court, the Appellant filed a Notice of Appeal on 2nd March, 2018. The Notice of Appeal which is at pages 72 to 74 of the printed record contains two Grounds of Appeal.

Parties filed and exchanged Briefs of Argument. The Appellant’s Brief of Argument settled by Elvis E. Asia of counsel filed on 13th August, 2018 was deemed as properly filed and served on 21st of February, 2018. The following issues were distilled for determination on behalf of the Appellant:
(a) Whether from the facts and circumstance of the case, the lower Court was right when it refused the application to transfer the matter to High Court of Lagos State having regards to the well established principle of law laid down in ADEGOROYE VS. ADEGOROYE (1996) 2 NWLR (PT. 433) 712 distilled from Ground 1.
(b) Whether the decision of the Court is not perverse against the weight of evidence produced before it (Distilled from Ground 2).

The Respondent’s Brief of Argument settled by Shina Agbesusi of counsel was filed on 21st February, 2019. The brief contained a preliminary objection which was argued therein.

Counsel further relied on the issues formulated on behalf of the Appellant and argued them in the Respondent’s Brief.

Learned Counsel to the Appellant filed an Appellant’s Reply Brief on 20/3/19 which was deemed as properly filed on 9/9/2020. In the Reply brief, he responded to the preliminary objection and also responded to issues formulated by him which were adopted and argued by the Respondent.

Order 19 Rule 5(1) of the Court of Appeal Rules 2016 provides inter alia:
“The Appellant may also, if necessary, within fourteen days of the service on him of the Respondent’s brief file and serve or cause to be served on the Respondent a reply brief which shall deal with all new points arising from the Respondent’s brief”.
Filing of an Appellant’s Reply Brief is not mandatory. It is only necessary where new points are raised in the Respondent’s brief to which the Appellant wish to respond. The new points must be such that were not contemplated and were not argued in the Appellant’s Brief of Argument. It is not an opportunity for the Appellant to extend the scope of his Argument or raise issues not dealt with in the Respondent’s Brief of Argument. Where an Appellant chooses to use a Reply Brief to reargue or widen the scope of submissions already canvassed in his substantive Brief of Argument, such reply brief would be discountenanced. See MAKWUNYE VS. IMOUKHUEDE (2019) 13 NWLR (PT. 1690) 439; EZEANOCHIE VS. IGWE (2020) 7 NWLR (PT. 1724) 430 AND ABDULKADIR VS. MOHAMMED (2019) 12 NWLR (PT. 1687) 450.
I have gone through the Reply brief filed on behalf of the Appellant and I find them not to be a response to any new issue raised in the Respondent’s Brief of Argument. What the Appellant did was to canvass further arguments in respect of the two issues formulated by him in his substantive Brief of Argument. The law does not permit this. All arguments contained in paragraphs 3.0 – 3.27 at pages 5 – 9 of the Appellant’s Reply Brief are discountenanced by me.

The Respondent raised a preliminary objection in his Brief of Argument which was argued therein. The Notice of Preliminary Objection and the arguments thereon are at pages 2 – 6, paragraphs 2.0. to 3.96 of the Respondents Brief of Arguments.

Order 10 Rule 1 of the Court of Appeal Rules 2016 permits a Respondent to rely on a preliminary objection to the hearing of an appeal. The purpose of such objection is to bring the hearing of the Appeal to an end for being incompetent or fundamentally defective. Where the preliminary objection succeeds the hearing of the Appeal is terminated. See NIGERIAN NATIONAL PETROLEUM CORPORATION VS. FAMFA OIL LIMITED (2012) 17 NWLR (PT.1328) 148; GENERAL ELECTRIC CO. VS. AKANDE (2010) 18 NWLR (PT.1225) 596 AND ADEJUMO VS. OLAWAIYE (2014) 12 NWLR (PT.1421) 252.

The Respondent incorporated a Notice of Preliminary Objection in his Respondent’s Brief of Argument wherein he challenged the competence of the Appeal. Where a Respondent incorporates a preliminary objection in his Brief of Argument it is a mere expression of his intent. His counsel must at the hearing of the appeal seek leave of Court to move the objection before the commencement of hearing of the appeal. Where counsel fails to so do, the objection is deemed to have been waived and abandoned. See TIZA VS. BEGHA(2005) 15 NWLR (PT. 949) 616; NIGERIAN LABORATORY CORPORATION VS. PACIFIC MERCHANT BANK LTD. (2012) 15 NWLR (PT. 1324) 5050; REGISTERED TRUSTEES OF THE AIRLINE OPERATORS OF NIGERIA VS. NIGERIAN AIRSPACE MANAGEMENT AGENCY (2014) 8 NWLR (PT. 1408) 1. In AGBAREH VS. MIMRA (2008) 2 NWLR (PT. 1071) 378 AT 425 PARAS B-D, the Supreme Court Per Ogbuagu JSC held as follows:

“A notice of preliminary objection may validly be raised to question either the competence of an appeal or an issue raised for determination by an appellant. See the cases of AJIDE VS. KELANI (1985) 3 NWLR (PT. 12) 248 AT 257 & 258 AND SALAMI VS. MOHAMMED (2000) 9 NWLR (PT. 673) 469, (2006) 6 SCNJ 281, just to mention but a few. However, a party filing or raising it in the brief must ask the Court for leave to move it before the oral hearing of the appeal commences, otherwise and this is settled, it will be deemed to have been waived and therefore abandoned. See the cases of AJIBADE VS. PEDRO (1992) 5 NWLR (PT. 241) 257 at 270 AND OFORKIRE & ANOR. VS. MADUIKE & 5 ORS.(2003) 5 NWLR (PT. 812) 166, (2003), 1 SCNJ 440 at 448”.
The instant appeal came up for hearing on the 9th of September, 2020. The Respondent was represented by counsel in Court. The Respondent’s counsel did not seek leave of this Court to argue the preliminary objection prior to the commencement of the hearing of the appeal. The preliminary objection incorporated in the Respondent’s Brief of Argument is therefore deemed abandoned and it is accordingly dismissed.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Now, to the substantive interlocutory appeal, the Appellant’s counsel formulated two issues for the determination of this appeal on behalf of the Appellant which issues were adopted by the Respondent and argued in the Respondent’s Brief of Argument. I shall determine this appeal based on the two issues formulated on behalf of the Appellant. They are:
(1) Whether from the facts and circumstances of the case, the lower Court was right when it refused the application to transfer the matter to High Court of Lagos State having regards to the well established principle of law laid down in ADEGOROYE VS. ADEGOROYE (1996) 2 NWLR (PT. 433) 712.
(2) Whether the decision of the Court is not perverse and against the weight of evidence before it.

ISSUE NOS. 1
Whether from the facts and circumstances of the case, the lower Court was right when it refused the application to transfer the matter to High Court of Lagos State having regards to the well established principle of law laid down in ADEGOROYE VS. ADEGOROYE (1996) 2 NWLR (PT.433) 140, 712.
Learned Counsel to the Appellant in arguing this issue submitted that the lower Court did not take into consideration the undisputed facts deposed to in the affidavit of the Appellant/Applicant in arriving at his decision to refuse the application. He submitted the trial judge erred in law when he held that the instant case is distinguishable from ADEGOROYE VS. ADEGOROYE (SUPRA) and urged us to hold that the facts in this case and that of ADEGOROYE VS. ADEGOROYE are similar. He submitted divorce proceedings cannot be instituted in a place where one of the parties is opposed to. He craved in aid of his submission the cases of ADEGOROYE VS. ADEGOROYE (SUPRA) and IBRU-STANKOV VS. STANKOV (2016) LPELR – 40981 (CA) 40981 (CA). He submitted further that the learned trial judge did not exercise his discretion judicially and judiciously in arriving at his decision. He placed reliance on the cases of ADIGWE VS. FRN (2015) 18 NWLR (PT.1490) 105, and FOLORUNSHO VS. FOLORUNSHO (1996) 5 NWLR (PT. 450) 612.

Arguing per contra, learned counsel to the Respondent submitted the lower Court was right when it refused the Appellant’s application to transfer the petition to the Lagos State High Court for hearing and determination. Relying on Section 2(1) of the Matrimonial Causes Act, 2004 and the case of ADEGOROYE VS. ADEGOROYE (SUPRA), he submitted that every High Court in the Country has jurisdiction on Matrimonial Causes under the Act. He contended that the Respondent’s right to file his petition before the Ota High Court is strengthened by Section 2(3) of the Matrimonial Causes Act and that any person who is domiciled in Nigeria may institute divorce proceedings in any High Court of any State he wishes whether he is domiciled in that State or not. He submitted the lower Court considered the interest of justice in coming to the decision that the application should be refused. He relied on the case of FOLORUNSHO VS. FOLORUNSHO (1996) 5 NWLR (pt. 450) 612. He submitted that the decision to grant or refuse the application for transfer of a divorce proceeding is at the discretion of the Court. He craved in aid of his submission the cases of STATOIL (NIG.) LTD. VS. S.D.W.P. LTD. (2015) 16 NWLR (PT. 1485) 361. IBHADE (NIG.) LTD. VS. AKWARI (2015) 13 NWLR (PT. 1477) 507.

He finally urged us to dismiss this appeal for lacking in merit for the following reasons:
(a) Section 2(1) Matrimonial Causes Act 2004 allows the Respondent/Petitioner to file his petition in the High Court of any State including Otta High Court.
(b) The Appellant failed to show that the lower Court exercised its discretion wrongly.
(c) That the case of ADEGOROYE VS. ADEGOROYE (SUPRA) relied upon by the Appellant is different and distinguishable from this case.
(d) The Application for transfer was brought by the Appellant in bad faith because since the Appellant was served with the Petition, she has always attended Court sitting whenever the matter came up for hearing.
(e) The Ruling of the trial judge is not perverse.

The instant appeal emanated from a divorce petition proceedings instituted by the Respondent against the Appellant at the Ogun State High Court sitting at its Ota Judicial Division. The record shows that both parties are resident in Lagos State. Section 2(1)(a) of the Matrimonial Causes Act provide as follows:
“Subject to this Act, a person may institute a Matrimonial Cause under this Act in the High Court of any State of the Federation; and for that purpose the High Court of each State of the Federation shall have jurisdiction to hear and determine:-
(a) Matrimonial Causes instituted under this Act.”
It is clear from the above that a person who is desirous of instituting a Matrimonial Cause is at liberty to do so at any High Court of any of the States in Nigeria. This is however subject to other provisions of the Act. The phrase “subject to” is a form of limitation of the provisions where it is used. It means that some succeeding or later provisions in the Act controls the provisions of the Section concerned. See TEXACO PANAMA INCORPORATION VS. SHELL PETROLEUM DEVELOPMENT CORPORATION OF NIGERIA (2002) 5 NWLR (PT. 759) 209; EBHOTA VS. PLATEAU INVESTMENT AND PROPERTY DEVELOPMENT COMPANY LIMITED (2005) 15 NWLR (PT. 948) 266 AND OLORUNTOBA OJU VS. ABDUL RAHEEM (2009) 13 NWLR (PT. 1157) 83. In NIGERIA DEPOSIT INSURANCE CORPORATION VS. OKEM ENTERPRISES LIMITED (2004) 10 NWLR (PT. 880) 107, the Supreme Court per Uwaifo JSC held as follows:
“It must therefore be understood that “subject to” introduces a condition, a restriction, a limitation, a proviso see OKE VS. OKE (1974) 1 ALL NLR (PT. 1) 443 AT 450. It subordinates the provisions of the subject section to the section empowered by reference thereto and which is intended not to be diminished by the subject section, see LSDPC VS. FOREIGN FINANCE CORPORATION (1987) 1 NWLR (PT. 50) 413 AT 461; AQUA LTD. VS. ONDO STATE SPORTS COUNCIL (1988) 4 NWLR (PT. 91) 622 AT 655.
The expression generally implies that what the section is subject to shall govern, control and prevail over what follows in that subject section of the enactment, so that it renders the provision to which it is subject to condition upon compliance with or adherence to what is prescribed in the provision referred to. SEE TUKUR VS. GOVERNMENT OF GONGOLA STATE (1989) 4 NWLR (PT. 117) 517 AT 542, 565, 580; IDEHEN VS. IDEHEN (1991) 6 NWLR (PT. 198) 382 AT 148; LABIYI VS. ANRETIOLA (1992) 8 NWLR (PT. 258) 139 AT 163-164.”
It follows therefore that the application of Section 2(1)(a) of the Matrimonial Causes Act is dependent on other provisions of the Act.
Section 9(2) of the Matrimonial Causes Act provides as follows:
“Where it appears to a Court in which matrimonial cause has been instituted under this Act (including a matrimonial cause in relation to which subsection (1) of this section applies) that it is in the interest of justice that the matrimonial cause be dealt with in another Court having jurisdiction to hear and determine that cause, the Court may transfer the matrimonial cause to the other Court.”
The above provision gives a Court the discretion to transfer a Matrimonial Cause to another Court where the judge thinks it is in the interest of justice to so do. The right of a person to institute a Matrimonial Cause where he wishes under Section 2(1)(a) of the Act (supra) is subject to the discretionary powers given to a Court under Section 9 (2). (Supra)
By this appeal, the Appellant questions the exercise of the discretionary powers vested in the High Court of Ogun State when it refused to transfer the divorce Petition instituted before it to the Lagos State High Court based on her application.
“Discretion” is the power to decide what should be done in a particular situation. A Court must however exercise its discretion both judicially and judiciously. A sound exercise of judicial discretion must always meet the ends of justice and must not flow from or be bound by a previous decision of another Court in which discretion was exercised. It must be exercised based on the facts before the Court in the case under consideration. See AKINYEMI VS. ODUA INVESTMENT COMPANY LIMITED (2012) 17 NWLR (PT. 1329)209; UNION BANK OF NIGERIA PLC VS. ASTRA BUILDERS (W.A.) LIMITED (2010) 5 NWLR (PT. 1186) 1; OYEYEMI VS. IREWOLE LOCAL GOVERNMENT, IKIRE (1993) 1 NWLR (PT. 270) 462. IN AJUWA VS. SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LTD (2011) 18 NWLR (PT. 1279) 797, the Supreme Court held as follows:
“I have searched for the meaning of the word ‘Judicial discretion’ in Black’s Law Dictionary 8th Edition edited by Bryan Gerner at page 409,the word or phrase was defined as follows:
“The exercise of judgment by a judge or Court based on what is fair under the circumstances and guided by the rules and principles of law, a Court’s power to act or not to act when a litigant is not entitled to demand the act as a matter of right.
In the New International Comprehensive Dictionary of the English Language – Encyclopedia Edition at page 365, the word “discretion” was defined as – “The act or liberty of deciding according to justice and propriety, and one’s idea of what is right and proper under the circumstances without willfulness or favour.”
Judicial discretion is judicially and judiciously exercised where it is exercised based on relevant facts placed before the Court. The burden to place all material facts before the Court is on the party seeking such discretion. See DONGTOE VS. CIVIL SERVICE COMMISSION, PLEATUE STATE (2001) 9 NWLR (PT. 717) 132; GENERAL & AVIATION SERVICES LIMITED VS. THAHAL (2004) 10 NWLR (PT. 880) 50 AND MENAKAYA VS. MENAKAYA (2001) 16 NWLR (PT. 738) 203.
An application for the transfer of a divorce petition from one Court to another is not granted as a matter of course. It is at the discretion of the Court and no one case is an authority for another. See SULEMAN VS. COMMISSIONER OF POLICE, PLATEAU STATE (2008) 8 NWLR (PT. 1089) 298; AMAECHI VS. OMEHIA (2013) 16 NWLR (PT. 1318) 417 AND OYEGUN VS. NZERIBE (2010) 16 NWLR (PT. 1220) 568.
The power to transfer a Matrimonial Suit and in this instance, the Petition filed by the Respondent at the lower Court is entirely at the discretion of the lower Court. Learned Counsel to the Appellant has contended the trial judge failed to follow the well-established principle of law laid down in ADEGOROYE VS. ADEGOROYE. In the case of ADEGOROYE VS. ADEGOROYE (1996) 2 NWLR (PT. 433)712, the Appellant prayed the Court (High Court sitting in Benin) to transfer a Matrimonial Cause commenced before it to the High Court of Lagos State where both parties reside. The Applicant in her affidavit evidence stated she would suffer considerable health and financial inconveniences if the application was not granted. The Respondent did not file any Counter-Affidavit. The Court of Appeal in that Appeal held that failure to file a Counter Affidavit meant the Respondent admitted the truth of the facts deposed to in the Appellant’s affidavit.
In the instant appeal, the learned trial Judge found the facts in ADEGOROYE’S case to be different from the facts in the case before him. The law is that for a case to be a precedent to the other the facts must be the same or similar. Parties should not however lose sight of the fact that the issue in contention in the present case is the exercise of the discretion of the lower Court. It is trite that where the exercise of the discretion of a Court is in contention, such discretion must be exercised based on material facts before it and the applicable law. The lower Court was therefore not bound to follow any authority cited by Counsel. The Appellant cannot insist the lower Court must follow the decision in ADEGOROYE VS. ADEGOROYE (supra). The trial judge distinguished the case before him from the ADEGOROYE case and went on to exercise his discretion based on the evidence presented by parties. He was right to so do.
Issue No. 1 is therefore resolved against the Appellant and in favour of the Respondent.

ISSUE NO.2
“Whether the decision of the Court is not perverse and against the weight of evidence produced before it.”
On this issue, learned Counsel to the Appellant submitted that the decision of the learned trial Judge was not only perverse but also against the weight of evidence. He referred us to the Ruling of the lower Court to contend that the learned trial Judge took into consideration extraneous facts and omitted germane facts in arriving at his decision. He pointed out that reference to the fact that the Appellant lived at Orupe Estate was not borne out of the affidavit evidence before it and that such reference is not a fact the lower Court can take judicial notice of by virtue of Section 167 of the Evidence Act, 2011. He contended that by so doing the lower Court descended into the arena of conflict and gave evidence for the Respondent. He craved in aid of his submission the cases of E.F.C.C. VS. AKINGBOLA (2015) 14 NWLR (PT. 1478)1; ALELU VS. EZE (2015) 13 NWLR (PT. 1475) 74 AND FEBSON FITNESS CENTRE VS. CAPPAH. LTD (2015) 6 NWLR (PT. 1455)263.

For his part, learned Counsel to the Respondent submitted the ruling of the lower Court was neither perverse nor against the weight of evidence before it. He argued further that describing the estate where the Appellant lived as Orupe Estate instead of Okupe Estate in the Ruling is a clerical error which was not substantial and did not lead to any miscarriage of justice. He submitted it is not every error in a Judgment that would lead to its reversal. He cited the cases ofOKADA AIRLINES LTD VS. F.A.A.N. (2015) 1 NWLR (PT. 1439)22; ALI VS. TANKO (2015) 10 NWLR (PT. 1466)1 AND TANKO VS. THE STATE (2009) 4 NWLR (PT. 1131) 430 in support. He submitted further that Appellant had a duty to show that the error occasioned miscarriage of justice but failed to do so.

It is further the argument of Respondent’s Counsel that the fact that the Appellant lived at Maryland, Lagos was borne out of the affidavit evidence before the Court and that the learned trial judge was right when he took Judicial Notice of the distance between where the Appellant worked and the Court by virtue of Section 167 of the Evidence Act. He finally urged us to dismiss the appeal.

In the affidavit in support of her application before the lower Court, the Applicant/Appellant deposed to the following facts:
That the marriage between her and the Respondent was celebrated at Archbishop Vinning Memorial Church, Ikeja on 27th of August, 1961 and they lived together in Lagos State until the Respondent forcefully prevented her from entering their matrimonial home sometimes in 1997. That she (the Appellant) currently resides at No. 19A Bush Estate, Okupe Estate, Maryland, Ikeja, Lagos and that her office is situate at 3, Ibikunle Akintoye Street, Apapa, Lagos. She further stated that the Respondent now lives at The Arches, Banana Island Road, Ikoyi, Lagos while his office is at 2B, Adewunmi Industrial Estate. She deposed that neither of the parties to this appeal reside in Ogun State where the Petition was filed. She deposed further that she will suffer grave inconvenience and hardship if the application for transfer is refused as the cost of defending the action in Ogun State in terms of finance and toll on her health will be too much for her. She also stated she lacks the wherewithal to retain the services of a lawyer to represent her at the Ogun State High Court.

The Respondent filed a Counter affidavit wherein he denied the facts contained in the Appellant’s affidavit. He deposed to the fact that the Appellant is a business woman and has means to defend the petition before the Ogun State High Court. He also stated the Appellant has no disability that would impede same.

The Respondent filed a further affidavit wherein she deposed it would be impracticable for her to travel from Apapa to Ogun State because of the traffic situation. The Appellant joined issues with her by filing a further counter affidavit wherein he deposed there was no traffic congestion in Apapa or anywhere in Lagos that makes it impracticable for the Appellant to attend Court proceedings in Otta, Ogun State.

After hearing the arguments of Counsel, the learned trial judge ruled as follows:
“I have considered the processes filed by the parties including the Petition and the authorities cited by them particularly the case of ADEGOROYE VS. ADEGOROYE (1996) 2 NWLR (PT. 432) 712. All the authorities cited by Counsel makes it clear that the Court must exercise its discretion judicially and judiciously. The facts of ADEGOROYE VS. ADEGOROYE on which the Respondent/Applicant predicates her application is easily distinguishable from this case as the parties lived in Lagos and the Petition was filed in Benin. The affidavit evidence of the parties on this matter is shown on the Petition (which the case of OKAFOR VS. OKAFOR (2000) 1 NWLR 17) allows me to do shows that the Respondent lives in Orope Estate, Maryland, Lagos a distance of less than one hour from this Court, a fact which the provision of Section 167 of the Evidence Act allows me to presume as I also take judicial notice of this fact. The fact that the Respondent had children in Lagos or works in Apapa are facts which are also not be considered never as a painstaking consideration of this application that it is a judicious exercise of this Court’s discretion to refuse this application as the respondent will not be inconvenienced by hearing this matter before this Court in a time which will not be more than a day about the same distance to her office in Apapa and certainly less time there as it take judicial notice of such fact as allowed me by Section 167 of the Evidence Act that allows me to do so having regard to the natural course of human business and affairs. The fact that the Respondent has also retained the services of the Chambers of Chief Rotimi Williams Chambers belies the fact that she is incapable financially of comprising able Counsel as deposed by her in the affidavit in support. This application is dismissed as frivolous without merit”.
See page 71 of the Record.

The Appellant made a heavy weather of the fact that the learned trial judge referred to her residence as Orope Estate, Maryland, Lagos instead of Okupe Estate, Maryland, Lagos as deposed in her affidavit. This error to my mind has not occasioned any miscarriage of justice as it is not in dispute that the Appellant lives in an estate in Maryland, Lagos. It is against the background that the Appellant lives in Maryland that the learned trial judge came to the conclusion that the distance between Appellant’s residence and the High Court Otta, Ogun State is less than one hour. The learned trial judge also considered the distance between the Appellant’s office and the Court and came to the conclusion she will not suffer any inconvenience if the Petition is heard in Otta.

The law is that a Court will presume the existence of a fact from the existence of one or more proved fact if such a presumption is irresistible or there is no other presumption which fits the proved or admitted facts. See ANYANWU VS. UZOWUAKA (2009) 13 NWLR (PT. 1159) 445; HIGH GRADE MARITIME SERVICES LIMITED VS. FIRST BANK LIMITED (1991) 1 NWLR (PT. 167) 290 AND HWANDE VS. BIEM & ORS (2019) LPELR- 46868 (CA).

Parties are agreed that the Appellant works and resides in Lagos and not Ogun State where the lower Court is situate. The area of disagreement is the convenience of the Appellant to attend Court sittings. Premised on facts before him, the learned trial Judge after taking judicial notice of the distance between the Appellant’s residence, place of work and the Court came to the conclusion that the Respondent would not suffer any inconvenience if the Petition is heard in Otta where it was filed. The decision of the learned trial Judge was an exercise of his discretion based on facts before him.

It is settled law that except on grounds of law an Appellate Court will not reverse a discretionary order of a trial Court just because it would have exercised its discretion differently. It would only do so where the order of the trial Court will result in injustice. See IKENTA BEST NIGERIA LIMITED VS. ATTORNEY-GENERAL, RIVERS STATE (2008) 6 NWLR (PT. 1084) 612; OLUMESAN VS. OGUNDEPO (1996) 2 NWLR (PT. 433)628 AND JOSIAH CORNELIUS VS. EZENWA (2002) 16 NWLR (PT. 783)298.
In the instant appeal, I am satisfied that the trial judge exercised his discretion judicially and judiciously based on material facts before him. The Respondent has not been able to demonstrate before us that the decision reached by the trial Court was perverse and occasioned a miscarriage of justice.
Having reached the conclusion that the decision reached by the trial judge was based on a proper exercise of his discretion. I also resolve this issue in favour of the Respondent and against the Appellant.

It is in the light of the foregoing that I find this appeal completely devoid of merit and it is hereby dismissed. I affirm the Ruling of the High Court of Justice Ogun State sitting in Otta delivered on 19th of February 2018 in Suit No. HCT/730/2017 between OLAJIDE O. ROSIJI VS. MRS. MOPELOLA A. ROSIJI.
Parties shall bear their respective costs.

JIMI OLUKAYODE BADA, J.C.A.: I read before now the lead judgment of my Lord FOLASADE AYODEJI OJO, JCA, just delivered.
My Lord has dealt with the issues in this appeal in a lucid manner and I agree entirely with the reasons given as well as the conclusion that the appeal lacks merit.

HARUNA SIMON TSAMMANI, J.C.A.: I had the privilege of reading in advance the draft of the judgment delivered brother, Folasade Ayodeji Ojo, J.C.A.

The issue leading to this appeal is an application filed before the trial Court seeking the transfer of the Petition for divorce filed by the Respondent. The learned trial Judge having listened to counsel refused the application. It is apparent that the decision whether or not to accede to an application for transfer of any suit, including a Divorce Petition, is at the discretion of the Court. In Matrimonial Causes, Section 9(2) of the Matrimonial Causes Act has sanctioned the transfer of such Cause, in the interest of justice. The phrase “interest of justice” is not easily defined. It is always simplified as an act done according to the law. See Willoughby v. International Merchant Bank Ltd (1987) 1 NWLR (pt. 48) 105 and Dr. Henry Effiong Bassey v. Attorney General Akwa Ibom State & Ors (2016) LPELR-41244 (CA).
It is therefore my view that where an act or decision of Court is to be done or taken in the interest of justice, the Judge saddled with such power has been given discretion in the matter. In exercising such a discretion, the judge must limit himself to the peculiar facts of the case as presented, so that injustice is not done to any of the parties to the dispute. Judges being persons trained in the law, must apply their judicial minds, in view of the facts of each case, so that they do not act whimsically or capriciously. Rather, the judge must act judicially and judiciously.
In the instant case, the learned trial judge displayed a judicial and judicious exercise of discretion considering the facts deposed to in the various affidavits of the parties. It is on that note that I agreed with my brother that this appeal is devoid of any merit. It is accordingly dismissed.
I abide by the consequential order(s) made by my learned brother.

Appearances:

F. OJO For Appellant(s)

O. AGBESUSI For Respondent(s)