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]

[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^[2]  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

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]

[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^[2]  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