E.I. ADEOYE (PETITIONER)
T.A. ADEOYE (RESPONDENT)
(1962) N.N.L.R. 63
(1961) All N.L.R. 821
Division: High Court (North)
Date of Judgment: 29th December, 1961
Case Number: Suit No. Z/24/1960
Before: Skinner, J.
Petition for Divorce.
The petitioner sought a divorce upon the grounds of Adultery and Cruelty. An intervener was named in the Petition, but no appearance was entered by her or on her behalf. The Petition alleged that both the petitioner and the respondent were domiciled in Northern Nigeria.
The evidence established that the respondent had resided in Kaduna, Northern Nigeria, since 1952; that he was employed by the Electricity Corporation of Nigeria and was posted to Kaduna at that time: that he is a native of Ilesha, Western Nigeria; that he spends his holidays there, and that he had married the intervener at Ilesha in accordance with the native law and custom obtaining there. No evidence was adduced to show that he had changed his domicile from Western Nigeria to Northern Nigeria.
Counsel for the petitioner conceded that the plea of domicile of the parties in Northern Nigeria had not been established by the evidence; but then contended that, although the petitioner was not domiciled in Northern Nigeria, his residence there for a period of three years immediately preceding the commencement of the suit was sufficient to confer jurisdiction for the purpose of these proceedings; by reason of the provisions of section 18(1)(b) of the Matrimonial Causes Act, 1950 (England), (14 Geo. 6. c.25) which, he contended, applied in Northern Nigeria by virtue of section 32 of the N.R. High Court Law, 1955.
Since the jurisdictional facts pleaded had not been proved, and since the proposition argued upon the failure of such proof involved the negation of the facts as pleaded, the Petition must fail; because a party is bound by the facts as pleaded and cannot be heard to argue the converse of those facts.
Because the second condition of section 18(1)(b) of the Matrimonial Causes Act, 1950, refers specifically to certain defined territories which have no equivalent in the Federation of Nigeria, that section cannot be held to confer jurisdiction on a Nigeria High Court to grant a divorce on the basis of a petitioner's three years residence.
Petition struck out.
Act and Law referred to:-
Matrimonial Causes Act, 1950, (England) (14 Geo. 6. C. 25) section 18(1)(b).
N.R. High Court Law (N.R. No. 8 of 1955) section 32.
Rule referred to:-
Matrimonial Causes Rules, 1957, (England) rule 4(1)(f).
PETITION for Divorce.
Gaji for the Petitioner.
Atta for the Respondent.
Skinner, J.:-The petitioner seeks the dissolution of her marriage with the respondent on the grounds of cruelty and adultery. No appearance was entered by the intervener named in the petition.
Having heard the evidence of the parties I was not satisfied that they are domiciled in Northern Nigeria as averred and I therefore invited Counsel for the petitioner to address me on this point. He conceded that this averment had not been proved but submitted that the petitioner's residence in Kaduna for a period of three years immediately preceding the commencement of this action is sufficient to confer jurisdiction for the purpose of these proceedings. This contention rests upon section 18(1)(b) of the Matrimonial Causes Act, 1950, which reads as follows:-
18. (1) Without prejudice to any jurisdiction exercisable by the court apart from this section, the court shall by virtue of this section have jurisdiction to entertain proceedings by a wife in any of the following cases, notwithstanding that the husband is not domiciled in England, that is to say:-
(b) in the case of proceedings for divorce or nullity of marriage, if the wife is resident in England and has been ordinarily resident there for a period of three years immediately preceding the commencement of the proceedings, and the husband is not domiciled in any other part of the United Kingdom or in the Channel Islands or the Isle of Man.
This section enacts a statutory exception to the ordinary rule that the court of the parties' domicile has exclusive jurisdiction to dissolve their marriage. It applies to a wife's petition where the husband is not domiciled within the jurisdiction of the court in which the proceedings are instituted; and it must be specifically pleaded, as prescribed by rule 4(1)(f) of the Matrimonial Causes Rules 1957. But in the present case the petitioner has sought to establish jurisdiction by averring domicile in Northern Nigeria. That averment has not been made out and she cannot at this late stage be heard to argue the converse, namely that the respondent is not domiciled in Northern Nigeria. I consider however that I ought to take this opportunity of expressing my views on the applicability of section 18(1) (b) of the Matrimonial Causes Act, 1950, to proceedings for divorce instituted in this Court.
The Matrimonial Causes Act, 1950, is a statute currently in force in England and may therefore be involved by virtue of section 32 of the Northern Region High Court Law, 1955. But can the provisions of section 18(1)(b) be effectively applied in Nigeria? It is to be noticed that there are two distinct conditions governing the exercise of jurisdiction under the "three-year rule", namely:-
(a) that the wife is resident in England and has been ordinarily resident there for a period of three years immediately preceding the commencement of the proceedings and
(b) that the husband is not domiciled in any other part of the United Kingdom or in the Channel Islands or the Isle of Man. I am satisfied on the evidence that, reading "Northern Nigeria" for "England", the first condition is met in this case.
The respondent is a technician employed by the Electricity Corporation of Nigeria at Kaduna and has lived there since 1952. His parents come from Ilesha in Western Nigeria and it appears that he spends his holidays there. He stated in his evidence that he had been married to the intervener at Ilesha in accordance with the native law and custom obtaining there. Thus it seems clear that the respondent's domicile of origin was in Western Nigeria. He is an official presently employed here but no evidence has been led to show that there has been a change of domicile. I therefore regard him as still domiciled in Western Nigeria and it necessarily follows that the petitioner is also domiciled there.
The second condition of section 18(1)(b) requires that the husband not being domiciled in England, should not be domiciled, at the commencement of the proceedings, in any other part of the United Kingdom or in the Channel Islands or in the Isle of Man. It is a condition which refers specifically to certain defined territories. These have no equivalent in the Federation of Nigeria, and, for this reason, I am of the opinion that the subsection cannot effectively be applied there. Section 32 of the Northern Region High Court Law, 1955, empowers this Court to exercise jurisdiction in probate, divorce and matrimonial causes in conformity with the laws and practice for the time being in force in England. It is not possible to conform to this condition by virtue of its specialised nature, and I am not prepared to say, as contended by Counsel for the petitioner, that Western Nigeria should be regarded as a foreign territory for the purpose of section 18(1)(b). The condition of non-domicile in the territories mentioned is reciprocal so far as Scotland is concerned (vide section 2 of the Law Reform (Miscellaneous Provisions) Act, 1949) and it seems to me that nothing short of Federal legislation can give this Court jurisdiction under the "three-year rule" to hear a wife's petition for divorce where the husband is domiciled in Nigeria but not within the Northern Region. It may be otherwise where a husband is domiciled outside Nigeria or where a wife petitioner seeks a Decree on the ground of nullity and the marriage has been celebrated within the jurisdiction.
For the reasons earlier given, I find that domicile within Northern Nigeria not having been established, I have no jurisdiction to hear this petition. It is accordingly struck out. The question of jurisdiction not having been raised by the respondent, there will be no order as to costs.
Petition struck out.