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 27TH NOVEMBER, 2024
BEFORE HIS LORDSHIP: – HON. JUSTICE I. M. NJAKA
SUIT NO: HOW/132D/ 2023
BETWEEN:
KELECHI SOLOMON EZEKA PETITIONER
AND
CHIOMA NNENNA EZEKA RESPONDENT/ APPLICANT
RULING
In this legal matter before the High Court of Imo State, Nigeria, we have a Petition for divorce filed by Kelechi Solomon Ezeka, which has been challenged by the Respondent, Chioma Nnenna Ezeka, through a Preliminary Objection.
The Respondent, Chioma Nnenna Ezeka, raises a Preliminary Objection to the Petition on the basis of jurisdictional incompetence. The key ground for the objection is that the Petition allegedly violates Order V Rule 10(1) of the Matrimonial Causes Rules 1983, which requires that the affidavit verifying the facts in the Petition must be written on the Petition itself.
The Respondent argues that the affidavit verifying the facts in the Petition was written on a separate paper, rather than on the Petition, as mandated by Order V Rule 10(1) of the Matrimonial Causes Rules. This, in the Respondent’s view, renders the Petition incompetent.
Since the affidavit is not properly attached, the Court’s jurisdiction to hear the case is allegedly compromised. According to the Respondent, the Court’s jurisdiction must be properly activated, and failure to comply with mandatory rules regarding the affidavit is a fatal defect that deprives the Court of its authority. The Respondent cites Agu v. C.O.P (2017) to emphasize that jurisdiction is fundamental, and any defect in competence would render the proceedings a nullity, no matter how well-conducted the trial might
Based on the above, the Respondent urges the Court to strike out the Petition as it is procedurally flawed and the Court lacks jurisdiction to proceed.
In response, the Petitioner, Kelechi Solomon Ezeka, contends that the Respondent’s Preliminary Objection is based on an outdated interpretation of the law. The Petitioner’s argument is that while Order V Rule 10(1) requires a verifying affidavit, the rule does not strictly mandate that the affidavit be written directly on the Petition itself, as long as it accompanies the Petition.
The Petitioner asserts that substantial compliance with the rule is sufficient. He notes that the affidavit dated December 15, 2023, was duly filed along with the Petition, which satisfies the requirement that there be a verifying affidavit accompanying the Petition.
The Petitioner argues that literal adherence to the provision would lead to an absurdity. Section 117(1) of the Evidence Act 2011 and Order XV Rule 7 of the Matrimonial Causes Rules 1983 govern the format of affidavits, and simply writing the affidavit on the Petition without proper formal headings or the suit number would be contrary to these legal requirements. Therefore, the Petitioner suggests that as long as the verifying affidavit accompanies the Petition, there is no procedural defect.
The Petitioner relies on recent case law, particularly Imoh v. Imoh (2021), where the Court held that the purpose of the verifying affidavit is to affirm that the facts in the Petition are true and within the Petitioner’s personal knowledge. The Court in that case ruled that the failure to write the affidavit directly on the Petition does not render the Petition incompetent, as long as the affidavit is properly filed with the Petition. Further, the Petitioner emphasizes that substantial justice should prevail over technicalities.
The Petitioner cites Order 1 Rule 14(1) of the Matrimonial Causes Rules, which states that strict compliance with the forms in the Rules is not necessary, and Order XXI Rule 2, which permits the Court to disregard non-compliance with procedural rules unless it directly affects the core of the matter.
The Petitioner concludes by urging the Court to dismiss the Preliminary Objection as frivolous and without merit, allowing the case to proceed on the merits.
The Respondent/Applicant argues that the verifying affidavit was not properly attached to the Petition as required by the Matrimonial Causes Rules, rendering the Petition incompetent and the Court without jurisdiction. The Petitioner counters that substantial compliance with the rule was met, and case law supports the position that the Petition remains competent as long as the affidavit is filed with the Petition, even if not written directly on it. The Petitioner argues that the Court should prioritize substantial justice over procedural technicalities.
The issues for determination in the Preliminary Objection raised by the Respondent/Applicant can be distilled as follows:
Whether the Petition for divorce is incompetent for failing to comply with Order V Rule 10(1) of the Matrimonial Causes Rules 1983:
Specifically, whether the requirement that the verifying affidavit be “written on” the Petition means that the affidavit must physically appear on the same document as the Petition, and if failure to do so renders the Petition incompetent.
Order V Rule 10(1) of the Matrimonial Causes Rules 1983 provides that the Petitioner must write an affidavit on his petition verifying the facts stated. The key contention here is the interpretation of “written on the petition.” The Respondent argues that this means the affidavit must be physically written on the same paper as the petition. The Petitioner, however, contends that filing the affidavit alongside the petition satisfies this requirement.
In Imoh v. Imoh (2021) LPELR-52459(CA), the Court of Appeal clarified the interpretation of Order V Rule 10(1). It held that the rule requires the verifying affidavit to accompany the petition but does not mandate that the affidavit must be physically written on the same document as the petition. The Court further emphasized that as long as the affidavit is filed together with the petition, the requirement is fulfilled.
Therefore, the failure to physically write the affidavit on the petition does not render the petition incompetent. This issue should be resolved in favor of the Petitioner.
Whether the failure to write the verifying affidavit on the Petition deprives the Court of jurisdiction to hear the Petition:
Whether this alleged procedural defect, if established, is sufficient to strip the Court of its jurisdiction to entertain the divorce Petition, thereby making the proceedings a nullity.
The Respondent argues that the failure to write the affidavit directly on the petition deprives the Court of jurisdiction, relying on the fundamental nature of jurisdiction in legal proceedings. Jurisdiction is indeed a foundational requirement, and any defect in jurisdiction can invalidate proceedings, as highlighted in Agu v. C.O.P (2017) 2 N.W.L.R. (Part 1549) 254.
However, the issue of jurisdiction in this case hinges on whether non-compliance with Order V Rule 10(1) is a fatal defect. The Court in Odusote v. Odusote (2012) 3 NWLR (Pt.1288) 478 held that as long as the affidavit was sworn before the petition was filed and it accompanied the petition, the requirement is fulfilled, and jurisdiction is properly activated.
Moreover, Order XXI Rule 2 of the Matrimonial Causes Rules 1983 states that non-compliance with the rules does not render the proceedings void unless the Court so directs. Therefore, the failure to write the affidavit on the petition does not strip the Court of its jurisdiction, especially if the affidavit was properly filed along with the petition.
Thus, the argument that this procedural irregularity deprives the Court of jurisdiction is unconvincing and should be rejected.
Whether substantial compliance with Order V Rule 10(1) of the Matrimonial Causes Rules 1983 is sufficient to validate the Petition:
Whether the fact that the verifying affidavit was filed along with the Petition (though not written directly on it) satisfies the legal requirement, thus allowing the Court to assume jurisdiction and proceed with the matter.
The doctrine of substantial compliance is a well-recognized principle in Nigerian jurisprudence. Order I Rule 14(1) of the Matrimonial Causes Rules states that strict compliance with the prescribed forms is not necessary, and substantial compliance is sufficient.
In Ndifon v. Bekomson (2017) LPELR-45404(CA), the Court held that where the purpose of a procedural rule is fulfilled, non-compliance with the form does not render the proceedings invalid. In this case, the purpose of Order V Rule 10(1) is to ensure that the Petitioner verifies the facts stated in the petition. As long as the affidavit accompanies the petition, the Court should focus on whether the verifying affidavit exists and whether it serves its intended purpose, rather than on whether it was written directly on the petition.
The Petitioner in this case did submit an affidavit verifying the facts in the petition, which accompanied the petition at the time of filing. This satisfies the requirement of substantial compliance under the law.
Therefore, substantial compliance in this case is sufficient to validate the petition.
Whether technical non-compliance with the procedural rule should be prioritized over the interest of substantial justice:
Whether the Court should apply the doctrine of substantial justice over technicalities, given that the purpose of the verifying affidavit is to affirm the truth of the facts stated in the Petition, and if this purpose has been fulfilled.
Nigerian courts have consistently moved away from strict adherence to technicalities in favor of achieving substantial justice. The Supreme Court in Alioke v. Oye & Ors (2018) LPELR-45153(SC) and Owuru & Anor v. Adigwu & Anor (2017) 1 NWLR (Pt.1599) 1 emphasized that courts must aim to do real and substantial justice rather than be bogged down by technical rules.
In the present case, insisting that the affidavit must be physically written on the petition, rather than merely accompanying it, would amount to placing form over substance. As the Court in Imoh v. Imoh ruled, such technical non-compliance does not materially affect the rights of the parties or the merits of the case. Therefore, the Court should prioritize substantial justice and allow the case to proceed.
Based on the discussion of these issues, the Court rules that:
- The Petition is not incompetent for failing to physically write the verifying affidavit on the Petition. Filing the affidavit along with the Petition is sufficient compliance with Order V Rule 10(1) of the Matrimonial Causes Rules 1983.
- The Court retains jurisdiction to hear and determine the Petition, as the procedural irregularity in question does not deprive the Court of jurisdiction.
- There has been substantial compliance with the rules, as the purpose of the verifying affidavit—to confirm the truth of the facts in the Petition—has been served by its proper filing along with the Petition.
- The Court should prioritize substantial justice over technical adherence to procedural rules and dismiss the Preliminary Objection as frivolous and without merit.
Consequently, the Preliminary Objection is dismissed, and the Court will proceed to hear the Petition on its merits.
I so hold.
I.M.Njaka
Judge
27-11-2024
Appearances:
UC Nwanedo Esq., for the Petitioner/Respondent
Chief F.O Onyebueke Esq., for Respondent/Applicant