Veronica Nneka N. Ibeziako V. Professor Stephen M. Ibeziako (2016)
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HELEN MORONKEJI OGUNWUMIJU, J.C.A.
This is an interlocutory appeal against the ruling of HON. JUSTICE G. C. ANULUDE of the Anambra state High Court delivered on the 31st day of October, 2012.
The petitioner before the High Court hereinafter called the respondent filed a petition dated 10th July, 2009 for dissolution of the marriage between him and the respondent hereinafter referred to as the appellant.
The respondent sought and claimed the following reliefs:
1. A decree of dissolution of the marriage.
On the following grounds:
a) That the marriage had broken down irretrievably
b) That since the marriage, the respondent had behaved in such a way that the petitioner cannot reasonably be expected to live with her.
c) That the petitioner and the respondent have been living apart for a continuous period of at least 3 years immediately preceding the presentation of this petition.
The respondent then filed a reply and answer to the cross petition dated and filed on the 2nd day of September, 2009.The respondent on 30th day of March, 2010 also filed form 34 the registrar’s certificate that suit is ready for trial.
The
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suit was set down for definite hearing on 25th April, 2012. The appellant, then, by a motion on notice brought pursuant to Order 4 Rule 1 (5) and Order 27 of the Matrimonial Causes Act dated and filed on 30th April, 2012 prayed the Court for the follow reliefs:
1. An order striking out the petition on the ground that the same is wholly incompetent in law as the petitioner/ respondent failed to comply with the mandatory requirements of the law relating to the same.
On the following grounds:
a) The petitioner/respondent had before his present marriage he is seeking to divorce, married another woman, Miss Sophia Egwuatu.
b) The petitioner divorced his said 1st wife and subsequently contracted the 2nd marriage, he now seeks the dissolution of same.
c) The petitioner/respondent did not disclose the above facts in his present petition and did not furnish the Court with any info relating to the previous dissolved marriage in his petition.
d) Furthermore, the petitioner/respondent did not annex the marriage certificate to the said marriage over which he now seeks dissolution in his present petition.
?The learned trial judge
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delivered a ruling on the 31st of October, 2012 wherein His Lordship held that Order 5 Rule 1(5) and Order 27 of the Matrimonial Causes Act are mere rules for filing a divorce petition and a breach of the rule is a mere irregularity and would not render the process a nullity as such irregularity can be waived if the party complaining acted timeously and before taking further steps in the proceedings.
The Learned trial judge consequently dismissed the motion in the interest of substantial justice and fair hearing.
Dissatisfied with the ruling of the Learned trial judge, the appellant has brought this interlocutory appeal.
In the appellant’s brief of argument settled by Emmanuel Onyishi, one issue was identified for determination as follows:
Whether on a dispassionate appraisal of the provisions of Order 5 Rule 1(5) and 27 of the Matrimonial Causes Act, the Lower Court was not in gross error when it held that the appellant’s non-compliance with the said provisions is an irregularity that could be waived.
?In the respondent’s brief settled by O.R Ulasi SAN, one issue for determination was also identified for determination as
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follows:
Whether the Learned trial judge was right in holding that the non-compliance complained of by the appellant is a mere irregularity and that the appellant did not act timeously in bringing the application.
From the records and the compliant of the appellant, though inelegantly drafted, I will determine the appeal on the appellants sole issue.
Whether on a dispassionate appraisal of the provisions of Order 5 Rule 1(5) and 27 of the Matrimonial Causes Act, the Lower Court was not in gross error when it held that the appellant’s non-compliance with the said provisions is an irregularity that could be waived.
Learned appellant’s counsel argued that the provisions of Or. 5 R.1 (5) of the Matrimonial Causes Act as follows:
Where a petitioner has been previously married, his petition shall state-
a) The date of the previous marriage or of each previous marriage, as the case may be
b) The means by which the previous marriage or each previous marriage was dissolved; and
c) If a previous marriage was dissolved by a Court, the name of the Court by which, and the date on which, the marriage was dissolved.
?Is not a
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mere procedural requirement, rather counsel argued that they are mandatory requirements of the law to which a party bringing a petition for dissolution of marriage such as this must strictly comply with.
Counsel argued further that where a party to a petition for dissolution of marriage had earlier been married and the said marriage was dissolved, it becomes imperative for the said party to disclose his earlier marriage in the subsequent petition for dissolution of marriage to the other party.
Counsel argued that the respondent did not comply with the provisions of Or.5 R.1 (5) and did not give any reasons why he failed to do so in an affidavit as required by law. He argued further that for a Court to consider non-compliance with the rules of Court as a mere irregularity, the party seeking to rely on it must present sufficient materials upon which the Court could exercise its discretion to waive the non-compliance in his favour. Counsel cited Nzekwe v Anakwegbu (2011) 16 NWLR Pt. 1274 pg.431.
Counsel argued that where parties are required by law to give information, such information must be proper before the Court and information such as
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previous marriage of the respondent cannot be seen as trivial, insignificant or merely peripheral as such to be waived by the petitioner. He argued that the petitioner misrepresented himself to the Court regarding his status before he married the appellant as ‘bachelor’ instead of ‘divorcee?. Counsel argued that the Court is bound to give a literal interpretation to the provision of statute where it is clear and unambiguous. Counsel citedOnochie v Odogwu (2006) 6 NWLR Pt. 975 Pg.65.
Counsel argued further that failure to commence a suit by due process of law as in the instant case and upon fulfilment of any condition precedent to assumption of jurisdiction, goes to the jurisdiction of the Court to entertain the case. He cited Central Bank of Nigeria v System Application Products Nigeria Ltd (2005) 3 NWLR pt. 911 pg. 152; Okolo v Union Bank of Nigeria Plc (2004) All FWLR Pt.197 pg. 981; Tuonzughul v Benue State (2005) 5 NWLR Pt. 918 Pg. 226. Counsel urged the Court to allow the appeal and strike out the respondents petition.
?Learned respondent’s counsel on the other hand submitted that the provisions the appellant is seeking to rely on are rules of
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practise and so a breach of the rule of practice amounts to an irregularity and not a nullity. He submitted further that an entire proceeding cannot be nullified for reasons of a mere irregularity particularly where the irregularity did not in any way materially affect the merit of the case to occasion a miscarriage of justice. Counsel cited Niger-Benue Transport Co. Ltd v Narumal & Sons Ltd (1986) 4 NWLR Pt. 33 Pg.117; Kossen (Nig) Ltd v Savannah Bank of Nigeria Ltd (1995) 9 NWLR pt. 420 pg. 439; Egbo v Agbora (1997) 1 NWLR pt. 481 pg. 293.
Counsel submitted that after the respondent filed his petition, the appellant filed her answer and cross petition without protest on 11th August, 2009 and failed to comply with the provisions of Order 7 Rule 3 (1) and (2) of the Matrimonial causes Rules by timeously raising objections to the petition. counsel cited Salako v. Williams (1999) 11 NWLR Pt. 574 Pg.505.
Counsel submitted further that the appellant participated actively in the course of the proceedings that followed the petition up to and including the 25th April, 2012 when at her counsel’s instance, parties were ordered to file depositions on oath of
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their witnesses. Counsel submitted that the appellant entered appearance, filed pleadings without protest and took steps in the proceedings, she cannot thereafter be heard to complain of any defect in the suit. Counsel cited Sonuga & Ors v Amadein & Ors (1967) NMLR 77; Nwoye v. Nigerian Road Construction Ltd (1966) NMLR 254; Obafemi v Orisamo (1967) NMLR 27; Shour v Fauziya (1971) 1 NMLR 299; Noibi v Fikolati (1987) 1 NWLR Pt .52 pg.614.
He submitted that it is not the law that a man who had his previous marriage dissolved should describe himself as a divorcee in another petition for dissolution of marriage. Counsel urged the Court to dismiss the appeal.
RESOLUTION
The petition was filed on 10/7/09. The respondent’s answer and cross petition was filed on 11/8/09. Three years later after participating up to that point in the judicial process filed a motion on 30/4/12 to have the petition struck out for failure to indicate previous marriage of the petitioner. In paragraph 4 of the affidavit in support of the application, the following paragraphs were stated on pg 25-26 of the record:
4. That I was informed in our office at No. 5
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Ozalla Road Onitsha, on 27th day of April, 2012, at about 1pm by Mrs Veronica Nneka Ndidi ibeziako the Cross Petitioner/Applicant of the following facts and I verily believe her:
a. That Professor Dr. Stephen Mbanefo Ibeziako, petitioner/Respondent was lawfully married to her, the cross Petitioner/Applicant, and they were issued with marriage certificate in accordance with the law.
b. That before their said marriage, the said Professor Dr. Stephen Mbanefo Ibeziako had married and divorced from another woman, Miss Sophia Egwuatu, and the said marriage was celebrated under the Marriage Act and Mrs Anayo Ofodile, the wife of Emeka Ofodile SAN, is one of the children of the said marriage.
c. That because he considers the dissolution of his first marriage, especially the circumstances surrounding same, as washing his very dirty lining in the public, may account for his reasons in refusing to plead some in this petition.
d. That Professor Dr, Stephen Mbanefo Ibeziako is also ashamed of disclosing the above fact in this petition because he does not want people to point at him or identify somebody of his educational and social standing and attainment as
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a professional divorcee and a failure in marriage.
In the counter-affidavit in support of the motion, the respondent particular conceded this point in paragraphs 4 on pg. 29 of the record as follows:
3. That on 13-6-2012, at about 3pm, the petitioner informed me in our office at No. 2 Awka Road, Onitsha and I verily believe him that:
a. He has seen and read the motion dated and filed on 3-4-12, the affidavit in support and a written address urging the Court to strike out this petition on the ground that same is wholly incompetent in law for the reason given therein,
b. Paragraphs 4(a) and 4(b) are correct while paragraphs 4(c), 4(d) and 5 are not true.
c. The marriage certificate has at all material times to this petition been in the possession of the respondent.
That should ordinarily be the end of the matter. The learned trial judge held thus on this issue in pg. 42-43 of the record:
It is my firm view that the cross petitioner is estopped from taking advantage of the said non-compliance having filed her answer and cross petition after three years without protest from the date of filing of the suit.
Besides, the
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non-compliance has not occasioned any miscarriage of justice.
The above opinion in my humble view forms the crust of this appeal. The respondent has conceded the failure to file the previous marriage certificate.
However is the non-compliance enough to render the petition a nullity?
Order 5 R. 1(5) provides as follows:
Where a petitioner has been previously married, his petition shall state-
a) The date of the previous marriage or of each previous marriage, as the case may be
b) The means by which the previous marriage or each previous marriage was dissolved; and
c) lf a previous marriage was dissolved by a Court, the name of the Court by which, and the date on which, the marriage was dissolved.
?There is no doubt that the rule stipulates by the use of the word ?shall? that the requirements to state those particulars are mandatory. The principle governing the use of the word “shall” in a legislative sentence is that it is generally imperative or mandatory and in its ordinary meaning “shall” is a word of command which is given the ordinarily compulsory because it denotes compulsion to do the act. It is legally
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mandatory. See Amokeodo v IGP (1999) 6 NWLR Pt. 607 Pg. 467; Amaechi v INEC (2008) 5 NWLR pt. 1080 Pg.227.
In this case, this provision was stipulated to be carried out at the institution of the petition.
Ordinarily, because of the surrounding circumstances of this case, which is a Matrimonial Cause in which the parties have lived apart for more than 3 years, and which is now pending in this Court for more than 6 years, my natural instinctive reaction is that technicality should not have a say.
However, the rule not complied with is not a mere procedural requirement for which extension of time can be granted. I agree with the learned appellant?s counsel that:
The Matrimonial causes Act, an act of the parliament, is not, and cannot be placed on the same status as the ordinary civil rules of Court on practice and procedure. The provisions of the aforesaid Act are mandatory, and require strict compliance to same, and a breach of its provisions aforesaid, touches on the jurisdiction of the Court to entertain the suit.
As I said earlier, my natural instincts in such procedural matters is to lean on the side of hearing the matter on the
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merit and not to look at the technical points. However, the procedure in Matrimonial causes is special. The requirement to state particulars of previous marriage and dissolution of such marriage by any of the parties is not a casual one. How would the Court determine whether there is ab initio a valid subsisting marriage under the Act to be dissolved, if the nature and the incidents of the previous marriage is not clearly shown. This is the type of situation when disobedience to the rule of procedure can go to the jurisdiction of the Court to sit on the petition itself.
In the case of Nzekwe v Anakwegbu (2011) 16 NWLR pt.1274 pg. 435 the Court herd thus:
?It is not in every non-compliance with the provisions of the Rules of Court that would nullify or render a proceeding void. Under certain circumstances non-complaince or failure to do certain things required to be done by rules of Court may be treated as mere irregularity curable if it is trivial, insignificant or merely affecting the periphery of the litigation. In such circumstance, the Court will readily award costs to cure the unintentional, unorganized and unpremeditated blunders. However, the
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Court may consider that non-compliance has invalidated proceedings where the party in breach fails to advance reasons for such non-compliance or to present sufficient materials upon which the Court could exercise its discretion.?
In this case, the respondent failed to advance any reason for his failure to state that he had been married before. He gave acceptable reasons for his failure to attach the marriage certificate.
Matrimonial Causes are special causes with its own special rules promulgated to enhance fair dispensation of justice in that cause of action. The rules binding proceedings therein must be obeyed.
In Raymond S. Dongtoe v. Civil Service Commission Plateau State (2001) 4 SC (Part II) 43, the Supreme Court per Karibi-Whyte JSC (as he then was) held thus;
“It is a well settled principle that where a special procedure is prescribed for the enforcement of a particular right or remedy, non compliance with or departure from such a procedure is fatal to the enforcement of the remedy.?
?The law is trite, that where the law provides a mode or a time for commencement of an action there must be strict compliance with such
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law or statutory requirement. None compliance by a claimant who might have a cause of action, loses the right to enforce it by judicial process. see also Eboigbe v. NNPC (1994) 5 NWLR Pt. 347, pg. 649; Oke v. Nwaogbunya (2001) 1 SC Pt.1 pg.22.
The respondent insisted that the appellant not having protested early, any objection to procedure was out of time.
Order 7 R.3 (1) and (2) Rules state as follows:
1. A respondent or co-respondent to a petition who desires to have jurisdiction of the Court to which the petition is addressed determined shall file an answer under protest in accordance with form 16, objecting to the jurisdiction of the Court.
2. An answer under protest shall state the grounds on which the respondent or correspondent objects to the jurisdiction of the Court.
I do not agree that the protest against want of jurisdiction envisaged above extends to the violation of Or. 5 R. 1 (5) of the Matrimonial Causes Rules. I agree that the failure to file all mandatory particulars in the petition makes it a nullity. The ruling of Hon. Justice Anulude delivered on 31/10/12 in Suit No 0/11D/2009 is hereby set aside. The petition is
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struck out being incompetent. Parties to bear their own costs.
Other Citations: (2016)LCN/8600(CA)
