Domicile A Requisite Criteria For The Assumption Of Jurisdiction In Matrimonial Causes By High Courts In Nigeria

By Stephen Peter Okangla

Introduction

Jurisdiction is the authority of a court to hear and decide a specific action. It is the bedrock of Adjudication. Pa His Lordship Honorable Justice NGWUTA JSC in the case of SOCIETY BIS SAV V. CHARZIN IND LTD[1] defined Jurisdiction as the dignity which the court has to do justice in a cause or complaint brought before it. It is the limits imposed upon the power of a validly constituted court to hear and determine issues with reference to the subject matter and the relief sought. In the case of RUHRGAS AG V. MARATHON OIL CO. ET AL[2] Jurisdiction was defined as the territory within which a court or government agency may properly exercise its power.

Under the 1999 Constitution of the Federal Republic of Nigeria as amended 2011, the National Assembly has the exclusive legislative power to make laws in respect of matters in the Executive list which includes inter alia “the formation, annulment and dissolution of marriage other than marriages under Islamic law and customary law including matrimonial causes relating thereto.” In the exercise of this jurisdiction, the national assembly has been responsible for the enactment of the Matrimonial Causes Act (MCA).[3] Pursuant to Section 1(1) of the MCA, “After the Commencement of this Act, a matrimonial causes shall not be instituted otherwise than under this Act”.[4] In line with the above, the National Assembly, in the exercise of its powers, has conferred jurisdiction in the Matrimonial Causes on State High Courts including the High Court of the Federal Capital Territory.

This paper seeks to explain in detail the basis of Jurisdiction and making it glaring the court vested with the jurisdiction on matter pertaining Matrimonial Causes. Due to the constraint posed as regard the topic of this research, I shall not dig further into the jurisdiction in relation to Non Customary Family law, but I shall proceed without further ado to discussing the “Basis of Jurisdiction” which is the crux of this paper.

Basis in which a High Court Can Assume Jurisdiction

The Merriam Webster Dictionary define basis as follows:[5]

1. the bottom of something considered as its foundation.
2. the principal component of something.
3. something on which something else is established or based.

From the definitions above, it is deduced that “Basis of Jurisdiction” is the foundation in which Jurisdiction of court is based. From our earlier discussion, it is discovered that the High Court is vested with Jurisdiction on Matrimonial Causes. Section 2(3) of the Matrimonial Causes Act 2004 provides:[6] “for the avoidance of doubt it is hereby declared that a person domiciled in any state of the Federation is domiciled in Nigeria, for the purpose of this Act and may institute proceedings under this Act in the High Court of any state whether or not he is domiciled in that particular state”.

We shall now proceed to look at the basis (foundation) of jurisdiction proper.

Domicile as Basis of Jurisdiction

The jurisdiction of the High court to entertain proceedings for matrimonial causes is based on domicile. Consequently, section 2(2) of the Matrimonial Causes Act stipulates only a person domiciled in Nigeria may institute proceedings under this Act in  the High Court of any state whether or not he is domiciled in that particular state. This provision has finally put to rest the pre 1970 dispute as to whether in matrimonial causes a person domiciled in Nigeria or in a State.

Domicile is a person’s permanent home. It may be distinguished from nationality or residence. Nationality refers to a country to which a person owes political allegiance. Residence, on the other hand involves a person’s physical presence in a country without the intention of making the country his permanent home. Residence should, however be differentiated from transitory visit to a country. A person may be resident in state A, but domiciled in state B.

There are three general fundamental principles governing the law of domicile. These principles are:[7]

1. No person can be without a domicile. The rationale of this rule is the necessity to link everyone with a legal system which may govern a number of legal relationships.
2. No person can at any time have more than one domicile for the same purpose.
3. An existing domicile is presumed subsist until a new one is acquired. Consequently the burden of proof of a new domicile lies on the person who alleges the change. The strength of the presumption varies according to the type of domicile in question. It is weakest in respect of domicile of dependence and strongest when the domicile is one of origin.

There equally three types of Domicile. These are:

1. Domicile of Origin
2. Domicile of Choice
3. Domicile of Dependence

DOMICILE OF ORIGIN

The basic principle of the domicile of origin has been succinctly stated by Lord WESTBURY to be:

“that no man shall be without a domicile,

and to secure this result, the law attributes to every

individual as soon as he is born the domicile of his

father, if the child is legitimate, and the domicile of

the mother if illegitimate”.

The domicile of origin is therefore involuntary. With regard to durability, it has been said that “its character is more enduring, it hold stronger and less easily shaken off”. A domicile of origin cannot be lost by abandonment. It can only be put in abeyance by the acquisition of a domicile of choice. The domicile of origin automatically revives when a domicile of choice has been lost.  In BHOJWANI V BHOJWANI[8] the Court of Appeal held that the petitioner’s domicile of origin in Singapore was not lost after he had lived in Nigeria for up to fourteen years for a business trip.

DOMICLE OF CHOICE

A person who had attained the age of twenty one other than a married woman, or a mentally disordered person, can acquire a domicile of choice if the following two factors co-exist, residence in a chosen country and the intention to reside permanently at least indefinitely. This element is referred to as a nimus manendi.

Residence, however long in a country cannot constitute domicile in the absence of the requisite intention. Conversely, no matter how strong an intention to acquire a domicile, the absence of residence in the particular country will vitiate the acquisition of domicile of choice. There must exist at the same time the fixed intention to establish a permanent residence in a particular country. If the relevant animus exist, a short residence in a particular country will constitute domicile.

In LEFEVRE V LEFEVRE[9] the petitioner, a Frenchman had lived in Nigeria since 1947 and married a Scottish Lady here. On the question whether a Nigerian Court had jurisdiction to dissolve the marriage. TAYLOR CJ found that the petitioner had acquired a Nigerian domicile of choice. To reach this decision  the court took into account that he had spent thirty five years in Nigeria, was then sixty five years of age, has lost both parents and had no home to return in France and had his matrimonial home in Nigeria over twenty six years.

DOMICILE OF DEPENDENCE

Married women, Children and the mentally disordered are regarded as dependent persons who cannot acquire a domicile of choice by their own act. The domicile of such persons changes with the domicile of the person whom they are legally dependent. Where the marriage is void ab inito, the woman will not acquire her husband’s domicile because there is no valid marriage. If on the other hand, the marriage is voidable, it remains valid and consequently the wife acquires her husband’s domicile. The dissolution of a marriage either by a decree absolute or by the death of the husband brings the marriage to a final end. In that case, the woman no longer depends on her husband for the change of her domicile. She does not automatically revert to her last domicile before marriage. At that point she retains her husband’s domicile before the event until she acquire a new domicile.

The domicile of a Child is the same and changes with the domicile of the father if the child is legitimate and the mother if he is illegitimate or if the father is dead. The domicile of a legitimated child would be dependent on that of the father where the legitimation was by subsequent marriage of the parents.[10]

SPECIAL PROVISON AS TO THE WIFE’S DOMICILE

It has been pointed out earlier that under the common law, a married woman possess her husband’s domicile throughout the marriage in certain circumstances, this rule cause hardship to the married woman. For instance, if she desires to divorce her husband, she is compelled to petition in the court of his domicile. The husband may change his domicile from time to time in order to frustrate her. In some countries, the solution has been to enable a married woman acquire a domicile of choice and no longer depend on her husband for a change of domicile. In Nigeria, a half-hearted approach has been adopted.

Section 7 of the MCA 2004[11] makes special provisions in respect of a wife’s domicile. It provides that a deserted wife who was domiciled in Nigeria either immediately before her marriage or immediately before the desertion shall be deemed domiciled in Nigeria (i.e., the wife must have been deserted in Nigeria). There are two aspects of the provision. First, the married woman must be domiciled in Nigeria immediately preceding the marriage or immediately before the desertion. It was held in ZANELI V ZANELI[12] that where an Italian who acquired an English domicile deserted his wife in England and retuned permanently to Italy the wife was presumed to be domiciled in England before the desertion. The second element of the provision requires the married woman to show that she is a deserted wife at the time she commences matrimonial proceedings.

Section 7 (b) of the MCA also provides that “a wife who is resident in Nigeria at the date of instituting proceedings under this Act and has been so resident for the period of three years immediately preceding that date shall be deemed to be domiciled in Nigeria at that date.

For matrimonial action to succeed on the side of the wife, she must have a permanent place of abode in Nigeria at the prescribed date. The second arm of the rule requires the proof that the wife has been so resident for a period of three years immediately preceding the institution of the proceedings. In effect, the resident must be continuous over the period in question. A mere temporary absence from Nigeria on business or holidays will not constitute a break of residence. In STRANSKY V STRANSKY[13] It was held that a wife who while maintaining a home in England, spent fifteen months abroad with her husband at his duty post, did not interrupt the period of residence in England.

CONCLUSION

It has been established from plethora of cases and the Matrimonial Causes Act 2004 that a High Court is vested with the Jurisdiction to entertain matrimonial causes, it could be a High court of any State of the Federation. Section 2 (2) of the MCA confers on a High Court to assume jurisdiction in the following:[14]

1. dissolution of marriage
2. nullity of a voidable marriage
3. nullity of a void marriage
4. judicial separation
5. restitution of conjugal rights
6. jactitation of marriage

However, before a High court can assume jurisdiction applicants must be domiciled in Nigeria. Domicile is the only basis in which a High court can assume jurisdiction in statutory marriage. From the forgoing it is trite that in Non-Customary Family law, a High court can entertain Jurisdiction and it can only assume Jurisdiction on the basis of domicile. Domicile is further categorized into origin, choice and dependence which have been earlier discussed herein.

Stephen Peter Okangla is a year two student of Law at the University of Maiduguri, he has great penchant for Oil and Gas, Criminal Law, Constitutional Law, International Law, Human Rights Activism, Litigation, Corporate practice and Lecturing. He can be reach via:

Phone No: 08132040369, Email: stephenokangla@gmail.com

[1] (2014) 4 NWLR Pt. 49 SC

[2] 526 U.S 574 (1999)

[3] Matrimonial Causes Act M7 L.F.N 2004

[4] ibid

[5] https://www.merriam-webster.com/dictionary/basis  accessed 24^th February, 2021.

[6] ibid

[7] Family Law in Nigeria, E.I. Nwogugu Third Edition (HEBN Publishers Plc)

[8] (1995) 7 NWLR (Pt.407) 349 CA.

[9] (1974) 4 U.I.L.R 48

[10] Op. Cit

[11] Op. Cit

[12] (1948) 64 TLR 356

[13] (1954) All E.R. 536; P. 428

[14] ibid