Evelyn Ariolu V. Kenneth John Ariolu (2006)

LawGlobal-Hub Lead Judgment Report

VICTOR AIMEPOMO OYELEYE OMAGE, J.C.A

In this appeal, the appellant seeks a reversal of the ruling of the High Court sitting in Port Harcourt, Rivers State coram C.I. Uriri, J. the ruling was delivered on 30/7/2004. By the application before Uriri, J., the application sought the setting aside of a divorce proceeding which purportedly took place on 8th November 1985.

The facts of the earlier proceedings are as follows: On 22nd March 1975, the applicant in the application before Uriri, J., entered into a marriage with Kenneth Chikwe Ariolu. At the time the applicant was a spinster. A certificate of marriage under the ordinance was issued to the parties. the children of the marriage were named as Flora Kenneth Ariolu, female born on 10/9/1996, (ii) Anoriochi Kenneth Ariolu, female, born on 22nd May, 1978, and (iii) Kinikachi Chijioke Ariolu, male, born on 7/6/1981. After a furious skirmish in the magistrate court in which a welfare officer referred the disagreement of the parties to the marriage was made initially for two older children. Deposition in the affidavit sworn to shown that quarrel ensured between the couple, and the wife Evelyn Ariolu, and she went to live in the house of her parents. One the intervention of both parents of the couple, the wife Evelyn returned to her matrimonial home. The reason for leaving the matrimonial home in the first instance she is because the husband pursued her with a knife on an allegation that after two issues for him, she did not produce a son; and that the husband had brought into the matrimonial home a woman named Iyerikabo Beauty Okujagu into the house. Meanwhile a child was born, who is a boy; and Evelyn agreed to move back into the matrimonial home. At the time Evelyn moved into the house, her deposition showed that her home had been taken over by the other woman; she had therefore to manage in the three rooms provided for her by her husband Kenneth in the same premises. She deposed further that, they, she and Kenneth lived together as husband and wife. She cooked for him and he ate her prepared food. She said on one occasion she was persuaded by her husband to visit her parents or relations at Owerri with her children. On her return to her matrimonial home sometime in 1983, she received a summons from the magistrate court to evict her from the three rooms accommodation in her husband’s house. She deposed thus in 5 paragraphs of affidavit in PHC/4D/83, file on 9/12/83 viz; “That Friday 6th June 2003 was the first time that my counsel B.F. Omidina informed me and I verily believe him that my husband Chief Kenneth Ariolu through his counsel served my solicitor a notice of preliminary objection and an affidavit in support accompanied by a decree for dissolution of the marriage between us dated 8th November 1985 said to have been instituted before the Honourable Justice P.G. Okara in suit No. PHC/4D/83; etc; etc. (2) That, Friday June 6 was the first time that I ever heard that my husband instituted any divorce proceedings against me. I was not present in the court throughout the alleged divorce proceedings because I was not award of any court proceedings against me. (3) That on receipt of this information on the divorce subject on 6/6/2003, I was overwhelmed with shock and rushed to my father in law (my husband’s father) and his other family members at No.28 Ngeche Avenue, Oginiba, port Harcourt to complain. My father in law expressed bewilderment an disbelief at the news, and confirmed he knew of no such divorce proceedings. An affidavit by my father in law is attached herewith, marked Exhibit E.

In par. 10 Evelyn Ariolu deposed thus: “I never received any notice of petition at any time from my husband or any other person” Par.14. “I do not know, I have ever seen nor have I ever briefed one CAC Uche of 22 Pound Road, Aba, noted in the paper as my counsel, as there was no time I ever lived in Aba, neither did I ever ask CAC Uche or any lawyer to appear for me on the purported petition for divorce or any law suit for that matter.” Par.16, she deposed further: “I have never seen CAC Uche before and could not have gone to see him with my people as was alleged in line; nor did I collect any papers from him because I did not know of any divorce proceedings going on.”

In par. 15; The wife of Ariolu, deposed thus: ” CAC Uche did not know me either. A letter retrieved by my current Counsel from the file of the welfare officer, urging me to contact him (the lawyer) through the welfare office; the letter is dated 16/8/1984; whereas in the Registry of the High Court; Exhibit G1, he had signed a response to the petition as my counsel. This is dated 23/5/83; even before his leter inviting me through the welfare officer to see him.”

The respondent to the motion, Mr. K. Ariolu, denied all the averments made by the applicant to set aside the divorce proceedings, Meanwhile at the commencement of the proceedings the Respondent’s counsel applied for a divorce absolute of the marriage. It was granted.

In his submission before Uriri, J., The Respondent urged the court to dismiss the application, saying 19 years have elapsed since the decree dissolving the marriage had been made, and that the delay has robbed the applicant of his right.

To the applicant’s motion filed on 27/4/2004 the respondent filed a response dated 14/5/04; and the appellant file a reply on a point of law. The disparity in dates of the process is because the applicant withdraw and substituted another motion for the one filed erroneously on 9/12/2003. In his ruling the trial judge refused the application to set aside the order of decree absolute of the marriage, and ruled that he did not believe that the legal profession had degenerated to level that the applicant had described it. He ruled “there is no gainsaying that the applicant had a pre-knowledge of the suit at least as at 6th August 1990, when Chez Akalonu sought and applied for the record of proceedings that is fourteen years with effect from the date she got wind of the suit; against this background it is trite that equity does not aid the indolent. On a calm appraisal of the processes of court, there is no gainsaying that the applicant had pre-knowledge of the suit which is to say she was duly served with the processes of court. For this proposition I am emboldened by the endorsements as reflected by several pages of the case file. In consequence the trial court held: “In the light of these facts. I am disinclined to disbelieve the painted stories of the Respondent/Applicant in urging this court to set aside the well considered judgment of my brother judge Okara, J. (as he then was) delivered sometime in 1985. I mean to say in the face of available fact I am unable to believe the fantasies.” “From comparative analysis of the legal profession world over. Nigerian Bar is second to none. I am therefore yet to believe that the legal profession in this country has degenerated to the acclaimed level of decadence. I therefore take the view that the plethora of authorities cited by the applicants’ counsel are inapplicable some not being relevant.” The trial judge concluded. “The action was commenced twenty one years ago, while on 8/11/85 the court in its wisdom and judgment decreed wise. That was 19 years ago, while the current motion to set aside was initiated 9th December, 2003. I take the view that this is one of such application that ought to be checked and as such destined for dismissal. It is accordingly ordered.”

The applicant was dissatisfied with the ruling of the court in dismissing his application; she has filed this appeal. The appellant’s brief was filed on 19/10/2005. She formulated five issues from the four grounds of appeal. The four grounds of appeal are contained on pages 123 to 125 of the record of proceedings. The five issues formulated by the appellants are on page 11 of the appellant’s brief of argument.

The issues formulated are more than the grounds of appeal filed. This is unacceptable to the rules in the court of appeal which forbids proliferation of issues; and argument on grounds of appeal is not permitted. See MACAULAY v. NATIONAL MERCHANT BANK LTD (1990) 4 NWLR (Pt.144) P.283 at 321. The Court of Appeal and the Supreme Court take a disfavourable view of proliferation of issues. Where this occurs, the court is entitled to adopt the issues formulated only on the feasible ground of appeal for determination of the appeal. See per Orah, JCA in STYM NIGERIA LTD v. GADZAMA (1995) 7 NWLR (pt.409) at 305.Before I decide which issue to jettison it is seemly to estate all the said issues so formulated. They are: “(1) Whether the learned trial judge was right to have taken judicial notice of: used and heavily relied on the letters of Chez Akalonu Esq of 6 and 7 August 1990 said to be on pages 53 and 54 of the case file so as to impart pre-knowledge of the divorce proceedings to the appellant when those unverified letters were not pleaded by the Respondent and did not form part of the record of proceedings. (2) Whether the learned trial judge correctly assessed and evaluated his decision that the appellant receive the court processes on the divorce proceedings and was aware of the suit. (3) Whether the learned trial judge was right when he failed. Refused or neglected to call oral evidence to ascertain the truth particularly with the applicant’s vehement denial on oath that she neither knew nor briefed learned CAC Uche or any other lawyer on the divorce proceedings as contained in paragraph 14 of her affidavit. Issue 4. Whether the learned trial judge was right in not taking into consideration in his ruling the fact that the Respondent committed an illegal act in marrying a second wife Iyerikabo Beauty Okujagu during the subsistence of the valid marriage and the respondent should not have been further aided by the court of law in the dispensation of justice. (5) Whether the length of time is a bar to relief in the case of fraud concealed against a party who was ignorant of such fraud and whether the learned trial judge was correct to rule that the appellant (applicant) who continuously lived with the Respondent till she heaerd on 6/6/03 of the decree of dissolution of the marriage could be said to have slept over her right for 14 years.”

I seem to me that issue 4 stated above is inappropriate to the issue to be determined; it is also a surplusage, being in excess of grounds of appeal filed; issue 4 in the appellant’s brief is hereby struck out.

The Respondent’s brief was filed on 21/1/2006 in which he formulated two issues namely: ” (1) whether the learned trial judge was right to have taken judicial notice of his record. (2) Whether the learned trial judge ought not to have set aside the judgment dated 8th November, 1985 delivered by Hon. Justice A.P.G. Okara rtd and late.

In this appeal, and considering the issues formulated by the appellant and of the Respondent; the Respondent formulated two issues, encapsulate the issues to be determined in this appeal. Consequently issues 1 ,2,3 and 5 of the appellant when shorn of their semantics convey the same meaning which, is looking at the records and processes viewed by the trial court can it be said that the motion to set aside the divorce proceedings of 1985 was served the necessary processes before commencement of the divorce proceedings. (2) Whether oral evidence should have been called by the judge to resolve the conflict in the affidavits touched. (3) Whether the long delay in the conflict in bringing the application to set aside the divorce proceedings is a bar to the prayers sought by the applicant.

In his brief, the appellant submitted that the trial judge was wrong to have taken judicial of, and to have relief on the letter of chez Akalonu dated 6 and 7 August 1990 in assuming his conclusions on the ground (1) that the applicant was aware of the divorce proceedings (2) That the applicant was served with the process of the court; and (3) That the applicant retained the services o a solicitor to defend her case, when the contents of the affidavit were at variance with such conclusion. The letter of Chez Akalonu referred to on pages 53 and 54 of the record have nothing to do with the divorce record of court proceedings. In response the respondent submitted in his brief that the court has a inherent the power to look at its record. Respondent, Mr. Ariolu urged the court to take judicial notice of same; and rule thereon.

On issue 2, the respondent urged the court to rule that the trial court ought not to set aside the judgment on divorce dated 8/11/85 and the applicant submitted that a wrong evaluation of the evidence before the court is the reason why the court failed to set aside the said judgment of 1985. As I recorded above, the totality of the arguments in both the brief of the appellant and of the respondent as founded on the judgment/ruling of the court below is whether in looking at the documents exhibited in the motion to set aside the order for decree absolute made in the judgment of Akara, J., on 8/11/85, the trial court found sufficient proof of service of the processes in divorce proceedings on the applicant; the would be respondent in the divorce proceedings.

The matrimonial Causes Act rule: Order (VI) rule 1(9) provides:

“Where service of a document is required by these rules to be affected on a person service may subject to the provisions of these rules that limit the methods of service of particular classes of documents be effected either in or outside Nigeria: (a) by delivering the document to the person personally. ” The proceedings which resulted in the judgment of 18/11/85 is a divorce proceedings. There is no record in the file that service of the process in each case, form the commencement of the action was never effected personally on the applicant. The record shows that the petition was served and acknowledged by a lawyer CAC Uche who the applicant said she did not know and who does not know her. Service of divorce process served on the social welfare officer by a bailiff who form evidence how that the process was served on 6/4/2003 whereas he claimed to have effected service on the applicant’s alleged respondent on 4/4/2003. A document not yet issued, the exhibit tendered in the affidavit show that the counsel CAC Uche had written to the welfare office to ask the officer there to contact him on her divorce matter. By the way as at that time the said Uche of counsel had received the petition for divorce of Evelyn Ariolu by her husband, and had prepared argument and memorandum of appearance on her behalf, the record in the judgment of 8/11/85 show so. See pages 19-22 of the record.

The document on page 24 in the file of affidavit in support of motion for substituted service which was filed by the respondent on 27th May 1985. Par.6 of the affidavit deposed that the application for substituted service is being made because the respondent’s counsel Uche had withdrawn his service for Evelyn Ariolu, the respondent.

Par. 7, states: “To further evade service the respondent has refused to come and collect social welfare.” The said respondent has deposed that she lives in the three rooms apartment furnished for her and her children at home in May 1985 by the respondent. More importantly a view of the content for the case file at pages 75 to 92 show from the stamp of the social office Woji, that the said Evelyn Ariolu collected the maintenance money from 9-8-84 through to 5-6-86. The trial court was therefore misled into considering the order for substituted service on the respondent Evelyn Ariolu. No record show that the prayer was granted, yet the trial judge Okara, J., proceeded to hearing and judgment.

In the ruling or judgment of R.P.G Okara, J., he wrote as follows: “In this petition the respondent retained counsel who entered appearance on her behalf and gave his address as the address for service for the respondent. He filed her answer in which even though she disputed some details and also stated that she wants to marriage dissolved, she expressed a desire to be heard about the custody of the children.” It is pertinent to observe and record that the respondent was marked “absent” on 8/11/85 when the judgment was given. The next question which arises is this, if in the answer filed on her behalf by her retained counsel the respondent expressed a desire to be heard on the custody of the children; when infact was she so heard on the custody of the children. The respondent has deposed to an affidavit to say, she never knew of any divorce proceedings and id not participate in any conference as in exhibit C. The court ruled further; “It would appear neither the respondent nor counsel is any longer interested in the petition.” And record show that the trial court with such knowledge as recorded above proceeded to order a decree nini, where is there effort of court of Appeal to effect settlement of divorce. From the above, the clear impression to be made is that the divorce proceeding is made exparte. The petitioner (Kenneth Ariolu) being the only party to the action. The purpose of exposing the one side proceeding is to show lack of proper service or any service at all on the Respondent in the proceedings; who is now applicant.

In his ruling the trial judge Uriri, J., ruled that he found evidence of service of the court process on the respondent from the contents of the document on pages 53/54 of the file when chez Akalonu Esq sought and applied for proceedings on 6/6/1990. Incidentally it was the same date the respondent said she knew of a divorce action against her which was concluded on 8/11/85. The observation of the trial court is at best erroneous; infact incompetent. The essential need for service of process on a party to a court proceeding is so important that it is considered a contravention of the rule of natural justice. The need for proof of service of court process is enshrined in our 1999 Constitution as it had always been in our constitutions. Where there is no proof of service of the court process all proceedings and orders that followed amount to a nullity. See NATIONAL ELECTORAL COMMISSION; (2) CHIEF EVANS ENWEREM V. DR. EZEKIEL IZUOGWU in appeal No. CR/2/145/92 (3) ALHAJI UMARU HAUNI V. GODI EZEAUCHI (1963) 6 SC 370; MAIKORI V. LERE (1992) 3 NWLR (PT.231) 525; OLAWUYI V. ADIYEMI (1990) 4 NWLR (PT.147) 746. The language used in the requirement is proof of service. Service of court process is so essential to proceedings in court that the service must be proved. There is no such proof. In the instant appeal, no evidence exist that the Respondent personally, participate in the proceedings, even the memorandum of appearance was according to record “filed on her behalf.” The alleged conference of settlement was made by a counsel on her behalf. There is no proof that the Respondent ever appeared in court at any time during divorce proceedings. This lends credence to the applicant’s deposition that she did not know of a pending divorce case, until 6/6/90. The failure to serve process of court on a party is not an irregularity; it is a fundamental defect. See OSUTOLA v. KAYODE (1982) LNWL 5; (ii) OBIMOMIRE v. ERINOSHO (1966) 1 ALL NLR 250 at 252. The second issue formulate by the joint issue of the two parties, the appellant and respondent brief is whether the trial court should have called oral evidence when he found conflict in the affidavit tendered by the contestants. From the affidavit and reply tendered by the parties, the trial court made conclusions (i) of service of some court processes on the applicant, Evelyn Ariolu; (ii) of knowledge or awareness of the divorce proceedings from a stared date. The trial court expressed his own views of the affidavit evidence of Ariolu Evelyn at trial called it “Painted stories” of the respondent/applicant.” Because the trial judge expressed his belief that the Nigeria Bar has not degenerated to that level of decadence, and since there must be an encl to litigation, as found by the trial judge, the judge refused the prayers sought by the applicant. A reader of the ruling of the trial judge will see an injustice in the order of court because the reason for refusing the applicant’s prayer have no relevance to the prayers and relief sought before the court. It is clearly unsafe and dangerous in my view for a trial judge to form his own opinion and rule on conflicting contents of affidavit before the court. It is for the above reason that previous several decisions of the court were made that oral evidence in proof of the truth of averment is conflicting affidavit should be called, unless there is a clear issue stated on which the court can take judicial notice. See ASONYE v. REGISTERED TRUSTEES OF CHRIST APOSTOLIC CHURCH OF NIGERIA (1995) 2 NWLR. The desire to call oral evidence by the trial judge is a discretion exercisable by the judge. There is no clear issue of law on which to make assumption in this case. The trial judge failed to do so in the instant case, he determined the issues on his deduction from the affidavit and his opinion. He thereby indirectly testified in the proceedings before him and rendered his decision a nullity. I resolve the issue in favour of the Appellant.

the decision on facts in the affidavit in the affidavit before the court below are perverse which call for the intervention of the appellate court as the conclusions made by the trial court can not be substantiated by the affidavit evidence before the court. See HYACINTH ANYANWU v. ROBERT MBARA & ANOR. (1992) 5 NWLR (pt.242) P.410 SC. The third issue in the appellant’s brief is whether the delay in instituting the processes to set aside the order of the court for decree absolute made on 8/11/65 will bar the action to reverse the judgment of 8/11/85.

The learned trial judge refused the applicant’s prayer, and recorded thus: “Finally” it is in the interest of the state that lawsuits be expeditiously brought to an end for prolonged justice loses its flavour becoming worthless.” The above expression of the trial judge as a reason for failure by the court to do justice renders the courts proceedings into a farce. A proper view of the affidavit evidence before the court and the exhibits tendered therein will show that the provisions of the law; particularly in divorce proceedings under the matrimonial Causes Act were not fulfilled. In such a case whatever proceedings or decisions taken therefore is a nullity. The trial judge failed to make a proper appraisal of the affidavit evidence before him; or he would have seen evidence of fraud and abuse of the legal processes. Each of these negate evidence and proof of service of process on the applicant to reverse the decision purportedly made in the ruling of Okara, J., as he then was. The delay in filing an action to achieve justice is not invariably a bar to obtaining justice from the court. See AROWOLO v. FABIYI (202) FWLR 95, P296 at 301.

There is clearly a substantial lapse of time between the issue of the order nisi by Okara, J., and the time of bringing the application to set aside the order; it cannot be justice to sacrifice fairness on the alter of expediency of time. It is for the reasons given above in the interest of the principle of natural justice of fair hearing, that I deem it right to allow the other party to express her view in a matter which affects her life and personal interest. I therefore direct that the divorce proceedings be reopened in the High court, Rivers State before another judge. To that purpose, I set aside the order of decree nisi and absolute made by the trial judge Okara, J.

There will be no order for costs.

Other Citations: (2006)LCN/1887(CA)