IN THE HIGH COURT OF IMO STATE OF NIGERIA
IN THE HIGH COURT OF OWERRI JUDICIAL DIVISION
HOLDEN AT HIGH COURT OF JUSTICE, OWERRI
THIS WEDNESDAY THE 6TH NOVEMBER, 2024
BEFORE HIS LORDSHIP: – HON. JUSTICE I. M. NJAKA
SUIT NO: HOW/75D/2023
BETWEEN:
NWANEVU CHIDIEBERE GORDIAN}- PETITIONER
AND
MRS. OGECHI PATIENCE NWANEVU RESPONDENT
RULING
In this case HOW/75D/2023, involving Mr. Nwanevu Chidiebere Gordian (Petitioner) and Mrs. Ogechi Patience Nwanevu (Respondent/Applicant), the Respondent filed an Answer under Protest challenging the jurisdiction of the court. The case pertains to a matrimonial petition for the dissolution of marriage filed by the Petitioner.
The Respondent raises objections to the court’s jurisdiction, asserting that the Petitioner has not adhered to mandatory procedural requirements under the Matrimonial Causes Rules, specifically:
- Order V Rule 10(1)(a)(b): The Petitioner failed to write on the Petition a verifying affidavit to the petition, verifying the facts within his personal knowledge and expressing belief in the truth of other facts stated. The Respondent contends that this omission is fatal to the Petition.
- Order V Rule 12(1): The Petition does not clearly state the grounds upon which the decree of dissolution is sought, another mandatory condition under the Rules.
The Respondent concludes that the Petition should be struck out for lack of jurisdiction and seeks costs for the inconvenience caused by the Petitioner’s non-compliance, amounting to ₦500,000.
In her Further Affidavit, the Respondent emphasizes that she has consistently performed her duties as a mother and has provided for the children’s upbringing. She asserts that her husband restricted her from seeing their children and that the children are currently in the care of her husband’s uncle in Abuja, while her husband resides in Gabon. The Respondent denies the Petitioner’s allegation that she or her family attempted to poison him, declaring that she would never harm the father of her children. She maintains that until the marriage is dissolved by the court, she retains the legal right to reside in the matrimonial home and have access to it.
The Written Address the main issue is whether the court has jurisdiction to hear the petition as it stands, considering the procedural non-compliance by the Petitioner.
The Respondent cites the landmark case of Madukolu v. Nkemdilim (1962), which established that for a court to have jurisdiction, certain conditions must be met, including adherence to legal procedures. The Respondent argues that the Petitioner’s failure to file a verifying affidavit as required by Order V Rule 10(1) renders the petition defective. This rule mandates that the affidavit be attached to the petition, verifying facts within the Petitioner’s personal knowledge and expressing belief in the truth of all other facts. The Respondent references judicial interpretations from cases such as Umueakuana v. Umueakuana and Unegbu v. Unegbu, which affirm that failure to meet this requirement is a “fatal” defect in a divorce petition, resulting in dismissal or striking out of the case.
In response to the Petitioner’s reliance on a conflicting Court of Appeal judgment in Imoh v. Imoh (2021), the Respondent distinguishes the case by emphasizing that in Imoh, the affidavit was filed on the same day as the petition. However, in this case, the issue lies with the absence of the affidavit on the petition itself, a mandatory condition under Order V Rule 10(1).
The Respondent asserts that procedural rules are essential to ensure the integrity of the legal process and cannot be waived for the sake of expediency or justice. The failure to meet these procedural requirements prevents the court from assuming jurisdiction over the case.
In conclusion the Respondent prays the court to strike out the petition for non-compliance with the Matrimonial Causes Rules and lack of jurisdiction, while also requesting ₦50,000 in punitive costs.
The Petitioner filed a Counter Affidavit, Written Address, Further Counter Affidavit, and Reply on Points of Law to oppose the Respondent’s preliminary objection and other applications. In response to the Respondent/Applicant’s Answer under Protest, the Petitioner deposed to a Counter Affidavit.The Petitioner, guided by his counsel, asserts that his petition is fully compliant with the law and that the applications brought by the Respondent are procedurally flawed due to her failure to file an Answer. The Petitioner claims that the Respondent’s applications, by not addressing the substantive issues in the petition, amount to a demurrer, which is prohibited under the Imo State High Court Rules, 2017.
The Petitioner denies the Respondent’s claims about their children. He clarifies that one of the children still resides with the Respondent, while the others are in a boarding school in Abuja. He further disputes allegations that he prevented the Respondent from seeing the children and asserts that her lack of contact is voluntary. The Petitioner reiterates his belief that the Respondent and her parents have attempted to harm him. As a result, he opposes granting the Respondent access to his residential homes, citing safety concerns. The Petitioner disputes various claims made by the Respondent in her affidavits, challenging her role in caring for their children and denying any wrongdoing on his part. The Petitioner concludes by urging the court to reject the Respondent’s preliminary objection and her motion on notice for lack of merit and factual accuracy.
In the Written Address accompanying the Counter Affidavit highlights three main issues for determination:
- Competence of the Petition:
The Petitioner argues that his petition complies with Order V Rule 10(1)(a)(b) of the Matrimonial Causes Rules, which requires a verifying affidavit to be sworn before the petition is filed.
The Petitioner references the Court of Appeal decision in Imoh v. Imoh (2021), which held that as long as the affidavit is sworn to before the petition is filed and accompanies the petition, the requirement is met. This, he argues, is the latest judicial position and should prevail over the Respondent’s reliance on older case law (e.g., Unegbu v. Unegbu). He points out that the Respondent’s contention that no grounds for dissolution were provided in the petition is unfounded, as the grounds are clearly stated in paragraph 11 of the petition.
- Sustainability of the Respondent’s Applications:
The Petitioner asserts that the Respondent’s failure to file an Answer before raising preliminary objections amounts to a demurrer. He contends that demurrer proceedings have been abolished by the Imo State High Court Rules, 2017, particularly under Order 22, which prohibits demurrers and allows points of law to be raised within pleadings, not separately. He further submits that adherence to court rules is mandatory and any deviation will be construed against the party in default, referencing case law such as Aromolaran v. Oladele (1990) and Charles v. Lagos State (2023).
- Access to the Petitioner’s Property:
The Petitioner opposes granting the Respondent access to his homes, claiming that her presence would endanger his life due to her alleged past attempts to harm him. He argues that the Respondent failed to refute these allegations in her affidavits, and under legal principles, her failure to defend these factual allegations equates to an admission.
The Petitioner concludes by urging the court to dismiss the Respondent’s applications with punitive costs of ₦500,000.
In his Further and Better Affidavit, the Petitioner reiterates that the Respondent did not properly care for their children, which is why he enrolled them in a boarding school in Abuja. The Petitioner denies again that he instructed anyone to prevent the Respondent from seeing the children, calling her claims of neglect and abandonment false. He asserts that the Respondent voluntarily left their home before he initiated the divorce proceedings, and her demand for access to the homes is unreasonable given her alleged attempts to harm him. The Petitioner requests the court to reject the Respondent’s affidavit as being untruthful and misleading.
In his Reply on Points of Law, the Petitioner argues that the Respondent’s reliance on Umeakuana v. Umeakuana (2019) is misplaced. He clarifies that the Supreme Court’s decision in that case was about the sufficiency of the contents of a verifying affidavit, not whether the affidavit needed to be attached to the petition, which is the issue in this case. Therefore, the case cited does not support the Respondent’s argument. The Petitioner emphasizes that a case is only authoritative for the legal principles it directly addresses. In this instance, the Supreme Court in Umeakuana did not decide on the specific issue of the affidavit being written on the petition, making the Respondent’s citation irrelevant. The Petitioner reiterates that the Court of Appeal’s decision in Imoh v. Imoh (2021) is more pertinent and current, as it specifically addressed the procedural requirements for verifying affidavits and determined that filing them alongside the petition meets legal standards.
The Petitioner concludes by urging the court to dismiss the Respondent’s preliminary objection and resolve all issues in favour of the Petitioner.
In summary, the Petitioner/Respondent’s submissions are structured around the assertion that the petition is procedurally sound and that the Respondent’s objections are without merit. The Petitioner maintains that his petition complies with current legal standards, as established in Imoh v. Imoh (2021), and that the Respondent’s failure to file an Answer before raising objections constitutes a demurrer, which is prohibited by court rules. Additionally, the Petitioner continues to assert that granting the Respondent access to his homes would pose a threat to his safety. The Petitioner requests the dismissal of the Respondent’s applications and seeks punitive costs.
RESOLUTION OF MATTER
From the affidavit evidence and written submission of the counsel, the following issues can be distilled for determination:
- Whether the High Court of Imo State has the jurisdiction to entertain the petition for the dissolution of marriage in light of the Respondent’s objection that the Petitioner failed to comply with mandatory provisions of the Matrimonial Causes Rules, specifically Order V Rule 10(1)(a)(b) and Order V Rule 12(1).
The Respondent contends that the petition is procedurally defective due to the Petitioner’s failure to attach a verifying affidavit written on the petition and sworn before filing. The Petitioner counters that his petition complies with the law, relying on the Court of Appeal decision in Imoh v. Imoh (2021), which allowed for the affidavit to accompany the petition as long as it was filed on the same day.
This ruling addresses the critical issue of whether non-compliance with Order V Rule 10(1) of the Matrimonial Causes Rules (MCR) 1983 renders a petition fundamentally defective and void, or whether such non-compliance can be considered a procedural irregularity that may be waived or cured in the interest of justice.
Order V Rule 10(1) requires a petitioner to file a verifying affidavit confirming the facts in the petition. The affidavit must verify the facts of which the petitioner has personal knowledge and state the petitioner’s belief in the truth of all other facts presented. The respondent has challenged the competence of the petition on the basis that the verifying affidavit was not written directly on the petition but filed separately.
In assessing the legal impact of this alleged procedural defect, the Court must weigh whether non-compliance renders the petition void or if it can be cured, as allowed under Order XXI Rules 2 and 3 of the Matrimonial Causes Rules, which provides for the Court’s discretion in cases of non-compliance.
The Supreme Court in John Umeakuana v. Mrs. Virginia Umeakuana (2019) 14 NWLR (Pt. 1691) 61 directly addressed the issue of non-compliance with procedural rules in matrimonial causes. In that case, the Court overturned a decision of the Court of Appeal, which had struck out a petition for non-compliance with Order V Rule 10. Odili, JSC held that although the use of “shall” in Order V Rule 10 suggests a mandatory requirement, the Court must always prioritize substantial justice over technicalities. The procedural requirement should not be applied rigidly where it would lead to substantial injustice, especially when the defect does not cause any miscarriage of justice.
In Achi Ndifon v. Nathaniel Takon Bekomson (2017) LPELR-45404(CA), the Court of Appeal reaffirmed that non-compliance with Order V Rule 10(1) does not render a petition null or incompetent as long as the affidavit accompanies the petition and serves its purpose of verifying the facts. The Court held that procedural rules are designed to assist the court in achieving justice, and non-compliance should not be fatal unless it causes prejudice to the opposing party or leads to a miscarriage of justice.
In a similar vein, the Court of Appeal in Wokoma v. Wokoma (2020) LPELR-49882(CA), per Nimpar, JCA, held that a defect in the verifying affidavit does not automatically oust the court’s jurisdiction or render the petition void. The Court reiterated that procedural defects, including non-compliance with Order V Rule 10(1), are curable irregularities. Such defects should only render proceedings void if they cause prejudice or miscarriage of justice. In the absence of such harm, the Court retains the discretion to cure the irregularity under Order XXI Rules 2 and 3.
Similarly, in Mrs. Gloria Nkolika Imoh v. Chief Evaristus Imoh (2021) LCN/14939(CA), the Court of Appeal upheld that the filing of a verifying affidavit, even if not written directly on the petition, satisfies the requirement of the Rules, as long as the affidavit accompanies the petition and serves its intended purpose. The Court emphasized that substantial compliance is sufficient, provided that no miscarriage of justice occurs.
The decision in Odusote v. Odusote (2011) LPELR-9056(CA) further clarified that while Order V Rule 10 imposes an obligation to verify facts, non-compliance does not necessarily void the proceedings. Instead, the Court may relieve a party from the consequences of non-compliance under Order XXI Rule 3 if substantial justice can still be achieved. The Court emphasized that rules of procedure exist to facilitate justice and should not be used to frustrate it.
These decisions highlight that while procedural rules are important for the orderly conduct of cases, they should not be used as tools for technical victories at the expense of justice. Courts are expected to prioritize substantial justice over technicalities, as repeatedly emphasized in cases such as Oloba v. Akereja (1988) 3 NWLR (Pt. 84) 508 and FGN v. Zebra Energy Ltd. (2002) 18 NWLR (Pt. 798) 162. These cases underline that rules of court are not ends in themselves but are instruments to facilitate justice.
In the present case, the respondent’s objection is grounded in the fact that the verifying affidavit was not written on the petition but filed separately. However, following the principles laid down in Umeakuana v. Umeakuana , Wokoma v. Wokoma and Imoh v. Imoh, the Court finds that this procedural defect does not render the petition void. The affidavit was filed at the same time as the petition, and there is no evidence that the respondent suffered any prejudice or miscarriage of justice as a result of this technical non-compliance. The respondent’s argument that the petition is void due to a technical defect in the format of the affidavit is unpersuasive.
The Court is further guided by the fact that Order XXI Rules 2 and 3 explicitly allow the Court to dispense with compliance or relieve a party from the consequences of non-compliance when the irregularity does not affect the substance of the case. The fundamental objective of these rules is to ensure that the Court delivers substantial and practical justice, devoid of technicalities that focus on form over substance.
In light of the foregoing, this Court holds that the non-compliance with Order V Rule 10(1) is a procedural irregularity that does not render the petition void. The affidavit accompanying the petition satisfies the purpose of verifying the facts, and there is no evidence of prejudice or miscarriage of justice resulting from the manner of its filing. The respondent, having failed to raise this objection at the earliest opportunity, is deemed to have waived the right to challenge the petition on these grounds.
Accordingly, the petition is competent, and the respondent’s objection is dismissed. The case shall proceed on its merits.
- Whether the Petitioner has sufficiently stated the grounds for the dissolution of marriage as required under Order V Rule 12(1) of the Matrimonial Causes Rules.
The Respondent argues that the Petitioner failed to clearly state the grounds for dissolution in the petition. The Petitioner points to paragraph 11 of his petition where he claims to have clearly listed the grounds for seeking the decree of dissolution.
According to Order V Rule 12(1) of the Matrimonial Causes Rules, the grounds upon which the dissolution is sought must be clearly stated. The Petitioner claims to have done so in paragraph 11 of his petition. This paragraph would have to be examined to confirm whether it clearly articulates the statutory grounds for divorce under Section 15 of the Matrimonial Causes Act (such as adultery, cruelty, or irretrievable breakdown of the marriage).
In Olarenwaju Aderounmu v. Olabisi Olaide Aderounmu (2003) 2 NWLR (Pt. 803) 1, the court held that matrimonial petitions are akin to pleadings, and failure to state grounds for dissolution is a fundamental defect. If paragraph 11 of the petition enumerates valid grounds recognized by law, the petition is competent.
I am of the view that the grounds stated in paragraph 11 of the petition are consistent with those prescribed by the Matrimonial Causes Act, the petition is valid.
- Whether the Respondent’s applications challenging the petition can be sustained in law despite her failure to file an Answer to the petition.
The Petitioner contends that the Respondent’s failure to file an Answer amount to a demurrer, which is prohibited by Order 22 of the Imo State High Court Rules, 2017. The Respondent’s applications, therefore, should be struck out as procedurally unsound.
The Imo State High Court Rules 2017, particularly Order 22, abolishes the use of demurrers, meaning a party cannot challenge the competency of an action without filing a defense (or Answer, in matrimonial cases). The Petitioner argues that the Respondent’s failure to file an Answer renders her applications akin to a demurrer, which is procedurally defective.
The abolition of demurrers does not prevent a party from filing a motion challenging the jurisdiction of the court without filing a defence to the suit.
In many jurisdictions, including under the Imo State High Court Rules 2017, a party can challenge the court’s jurisdiction without filing a defence by raising the issue through a preliminary objection or a motion on notice. This motion can be filed before the party submits to the court’s jurisdiction by filing a defence or other responses to the substantive issues.
The key distinction is that while demurrers have been abolished, the court still permits the use of motions to challenge its jurisdiction. The defendant can file this motion in limine (at the outset), seeking a determination of the court’s competence to hear the case without first responding to the merits of the claim. This approach ensures that a party can contest jurisdiction before entering a substantive defence.
Abolition of demurrers removes the procedural tool of demurrers but does not eliminate the right to challenge the court’s jurisdiction. Jurisdictional challenge can still be raised by filing a motion on notice, and it is permissible to do so without filing a defence. If the challenge succeeds, there is no need to file a defence; if it fails, the defendant may then proceed to file a defence.
From what I have said so far, the Petition filed by the Petitioner is not invalid.
I so hold.
I.M.Njaka
Judge
6-11-2024
CP Ezioka for the Petitioner
Prof. CK Okorie, SAN with CN Ukawuike Esq., for the Respondent