IMOH v. IMOH (2021)

IMOH v. IMOH

(2021)LCN/14939(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Friday, January 08, 2021

CA/L/749M/2013

RATIO

FAMILY LAW: EFFECT OF A PETITION NOT VERIFIED BY AFFIDAVIT

The starting point in addressing this issue is the provision of Order V Rule 10(1) of MCR. The order provides thus:
“10(1) A petitioner shall, by an affidavit written on his petition and sworn to before his petition is filed- (a) verify the facts stated in his petition of which he has personal knowledge; and (b) depose as to his belief in the truth of every other fact stated in his petition.”
By the above provision, it is clear that a petition which does not have a verifying affidavit sworn before a commissioner accompanying it will be incompetent and that will invariably deprive the Court of jurisdiction. The implication is that a petition for dissolution of marriage is not proper before the Court if it does not have accompanying it a verifying affidavit to the effect that the facts in the petition are within his personal knowledge. This is not so much of a challenge as the interpretation is clear. PER EBIOWEI TOBI, J.C.A.

INTERPRETATION: RULES OF INTERPRETATION

The rules of interpretation is clear in this respect to the effect that using the literal rule of interpretation, the words in the above provision will be given their normal and usual grammatical meaning. See Abegunde vs. Ondo State House of Assembly & Ors (2015) 8 NWLR (Pt. 1461) 314; PDP vs. INEC & Ors (2014) 9 SC 141.
The words in a statute on its own have no life except when the words are given interpretation by a Court. There are rules of interpretation which will guide the Court in carrying out its mandate in judicial interpretation which is to find the intention of the law maker. In doing that the Court will first apply the literal rule, which is to give the words in the statute their usual and normal ordinary meaning. See Gana vs. SDP & Ors (2019) LPELR-47153 (SC) where the apex Court held:
“The literal rule of statutory interpretation is that words must be given their plain and ordinary meaning unless to do so would lead to absurdity or injustice. See: Ogbunyiya Vs Okudo (1979) 6 – 9 SC 32; Abegunde Vs Ondo State House of Assembly & Ors. (2015) 8 NWLR (Pt. 1461) 314 @ 357 A – D; Ahmed Vs Kassim (1958) 3 FSC 51; Olanrewaju Vs Governor of Oyo State (1992) 11 – 12 SCNJ 92.”
Similarly, this Court per Ige, JCA in a recent decision in Suswam vs. FRN & Anor (2020) LPELR-49524 (CA) had this to say:
“This appeal revolves around the real intention of the National Assembly of Nigeria in enacting Section 98 into the Administration of the Criminal Justice Act 2015 which provides as follows:- “98.(1) The Chief Judge of a High Court may, where it appears to him that the transfer of a case will promote the ends of justice or will be in the interest of the public peace, transfer any case from one Court to another. (2) The power of the Chief Judge referred to in Subsection (1) of this Section shall not be exercised where the prosecution has called witnesses. (3) Where the chief Judge is to exercise this power subsequent to a petition, the Chief Judge shall cause the petition to be investigated by an independent body of not more than three reputable legal practitioners within one week of receipt of such petition. (4) The investigating body shall submit its report within two weeks of appointment except otherwise specified.” There is no doubt that the principles of Interpretation of a Constitution and Statutes are well settled. The trite law is that provisions of a Constitution or Statute must be construed or interpreted literally giving the words in such Constitution or Statute their ordinary grammatical meaning. The provisions must be read as a whole and not in isolation in order to bring out succinctly the real intention and desire of the law makers. A Court or Tribunal must ensure that it does not put or introduce any interpretation that will engender confusion into the provisions of the law being construed. See – 1. OCHOLI ENOJO JAMES SAN VS. INEC & ORS (2015) 12 NWLR (PART 1474) 538 AT 588 D – G per KEKERE-EKUN JSC who said: “In interpreting the provisions of the Constitution and indeed any statute, one of the important considerations is the intention of the lawmaker. In addition to giving the words used, their clear and ordinary meaning (unless such construction would lead to absurdity), it is also settled that it is not the duty of the Court to construe any of the provisions of the Constitution in such a way as to defeat the obvious ends it was designed to serve where another construction equally in accord and consistent with the words and sense of such provisions will serve to enforce and protect such ends. See: Mohammed v. Olawunmi (1990) 2 NWLR (Pt. 133) 458; Rabiu v. The State (1981) 2 NCLR 293; Adetayo v. Ademola (2010) 15 NWLR (supra) at 190-191 G- A; 205 D- F.” 2. COCACOLA NIGERIA LTD & ANOR VS MRS TITILAYO AKINSANYA (2017) 17 NWLR (PART 1593) 74 AT 121 G – H TO 122 A – B per EJEMBI EKO, JSC who said:- “It is only when the words of the statute are capable of two interpretations: one leads to absurdity, and the other does not, that the Court will conclude that the legislature does not intend the absurdity and will adopt the other interpretation that does not lead to any absurdity. The judex neither makes laws nor does it possess any power to amend any statute. Intent of the lawmaker and or the purpose in forming the enactment of the particular provisions of a statute are intertwined. It is from the words of the statute and no other source, that the intention of the framers of a statute or Constitution must be ascertained. Thus, as ADEREMI, JSC, stated in Action Congress v. INEC (2007) 12 NWLR (Pt. 1048) 222 at 318 para. F, (2007) 6 SC (Pt. 11) 212: “a judge’s duty which is even a command on him is to interpret the clear and unambiguous words according to their ordinary, natural and grammatical meanings and must not add to or remove any words therefrom; no onerous weight or burden must be foisted on an otherwise clear and unambiguous provision.” 3. APC & ANOR VS. ENGR. SULEIMAN ALIYU LERE & ANOR (2020) 1 NWLR (PART 1705) 254 AT 284 F-G per RHODES- VIVOUR, JSC who said:- “Where the words used in a statute are clear and free from ambiguity they should be read and construed as it is without any interpretation or embellishments. The words should be given their ordinary meaning except where such a construction would be ridiculous, not logical and sensible. See A.G. Anambra State Vs. A.G. Federation (1993) 6 NWLR (Pt. 302) P. 692; Mobil v F.B.I.R (1977) 3 SC P. 3; Toriola v Williams (1982) 7 SC P. 27.”
If the literal rule of interpretation will make the Court discover the intention of the law maker, then the Court need not go further. However, if the application of the literal rule will lead to absurdity or create injustice, the Court will be made to apply other rules of interpretation including the golden rule or mischief rule. See Ojukwu vs. Obasanjo & Ors (2004) 12 NWLR (Pt. 886) 169; AG Federation & Ors vs. Abubakar & Ors (2007) 10 NWLR (Pt. 1041) 1. PER EBIOWEI TOBI, J.C.A.
EVIDENCE: PURPORT OF A VERIFYING AFFIDAVIT IN LAW

A verifying affidavit in law when required is to affirm the facts as stated in the process for which verification is needed. The verifying affidavit is to verify that the facts stated in the petition were within his personal knowledge and they are true and he can defend them as his. In this respect, what is important is that the verifying affidavit is filed along with the petition and not later than the petition. It is my view that the purpose of the verifying affidavit will be served if the said affidavit is filed along with the petition and it is of no moment that it was not written on the petition. Insisting that it should be written on the petition otherwise the petition will be incompetent will be insisting on technicality over substantial justice. The current trend is that the Court exists to do justice and in so doing what is important is that the Court must do real and substantial justice and not abstract and technical justice. See Alioke vs. Oye & Ors (2018) LPELR-45153 (SC); Owuru & Anor vs. Adigwu & Anor (2017) 1 NWLR (Pt. 1599) 1. PER EBIOWEI TOBI, J.C.A.
JUSTICE: WHICH WILL PREVAIL WHERE THERE IS A CONTEST BETWEEN TECHNICAL AND SUBSTANTIAL JUSTICE

In a contest between technical and substantial justice, substantial justice will prevail. PER EBIOWEI TOBI, J.C.A.

Before Our Lordships:

Joseph Shagbaor Ikyegh Justice of the Court of Appeal

Balkisu Bello Aliyu Justice of the Court of Appeal

Ebiowei Tobi Justice of the Court of Appeal

Between

MRS. GLORIA NKOLIKA IMOH APPELANT(S)

And

CHIEF EVARISTUS IMOH RESPONDENT(S)

EBIOWEI TOBI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of Hon. Justice E. O. William-Dawodu (Mrs) formerly of the Lagos State High Court wherein the Preliminary Objection of the Appellant (Respondent in the lower Court) was dismissed. The objection of the Respondent was basically on the premise that the lower Court lacked jurisdiction as the Petition was not commenced in line with the provisions of Order V Rule 10 of the Matrimonial Causes Rule. The lower Court dismissed the 6 grounds of the objection and held on page 60 of the record thus:
“….In this regard, the Court therefore as aforesaid is able to allow the hearing of the motion in order for the non-compliance to be taken care of within the provisions of Order XXI R. 2 of the Matrimonial Causes Rules.
In the result, I hereby over rule the objection and set the motion down for hearing.”

The Respondent at the lower Court dissatisfied with the ruling filed this appeal and as such became the Appellant in this appeal. The Appellant’s Notice of Appeal found on pages 61- 66 has 6 grounds of appeal to wit:

GROUND 1:
The order/ruling was giving (sic) without jurisdiction.
GROUND 2:
The learned trial Judge erred in law when he held that the fact that the verifying affidavit in support of the Petition for Dissolution of Marriage is not written on the petition is fatal to the Petition.
GROUND 3:
The learned trial Judge erred in law when he held that the attached verifying affidavit properly and really verified the facts stated on the petition.
GROUND 4:
The learned trial Judge erred in law when he held that the defects in the Respondent’s Petition can be corrected by an amendment.
GROUND 5:
The learned trial Judge erred in law when he held that the Petitioner’s Counsel’s amendment of the address of the Respondent as endorsed on the Petition without obtaining an order for amendment was not fatal to the petition.
GROUND 6:
The earned trial Judge erred in law when he held that the service of the Petition was proper.

The learned counsel to the Appellant is Olu Falana Esq. In the Appellant’s brief filed on 22/7/16, the following issues were raised as issues for determination:

Whether the failure of the Respondent/Petitioner to write the Verifying Affidavit on the Petition as prescribed by Order V Rule 10(1) of the Matrimonial Causes Rules, 1983, is not fatal to the Petition.
2. Whether the trial Court was not in error in holding that the Petitioner/Respondent’s Counsel amendment/change of the address of the Appellant as endorsed on the Petition without obtaining the order of the Court for an amendment was not fatal to the Petition and whether the trial Court was right in holding that the service of the Petition was proper?
3. Whether the trial Court was not making out a case for the Respondent/Petitioner in holding that the defects in the Respondent’s Petition can be corrected by an amendment?
4. Whether the trial Court was not in error in holding that the Respondent/Petitioner’s purported scanty verifying affidavit properly and really verified the facts stated on the Petition and whether the trial Court was right to make the order/ruling without jurisdiction?

In addressing issue 1, learned counsel submitted that the failure of the Respondent to write ‘verifying affidavit’ on the petition as

required by Order V Rule 10 (1) of the Matrimonial Causes Rules (“MCR”) is fatal to the commencement of the Petition as that has robbed the Court of jurisdiction. Though conceding that there is an affidavit to the petition but because it is separate and not written on the Petition, it is therefore invalid as the word ‘shall’ is mandatory. Counsel referred to Unegbu vs. Unegbu (2004) 11 NWLR (Pt. 884) 332; F.U.T.A. vs. A.S.U.U. (2013) All FWLR (Pt. 707) 678.

On issue 2, it is the submission of learned counsel that the Respondent changing the original address of the Appellant without the leave of Court is fatal to the competence of the Petition as under Order I Rule 12 (3) only the Appellant can file the notice of change of his address. The action of the Respondent amounted to amending the Petition, counsel submitted relying on Mbanefo vs. Molokwu (2010) All FWLR (Pt. 512). The service of the Petition by substituted means at the new address accepted by the lower Court was in error he submitted. On the fundamental nature of service counsel referred to Aondoakaa vs. Obot (2013) All FWLR (Pt. 673) 1967;

Tuoyo Holdings Limited vs. Niger-Benue Transport Co Ltd (2007) All FWLR (Pt. 3560) 800; NEPA vs. Uruakpa (2011) All FWLR (Pt. 566) 476.

Learned Counsel submitted that the lower Court referred to a motion seeking to amend the Petition after the preliminary objection was filed. The decision to hold that the Petition is competent when the Respondent did not counter the averment amounts to making a case for the Respondent, counsel submitted when dealing with issue 3. This is more so that the motion was not argued before the Court. A Court should not make a case for any of the parties or speculate, counsel submitted relying on INEC vs. Atuma (2013) All FWLR (Pt. 697) 619; Ajanaku vs. Osuma (2014) All FWLR (Pt. 727) 695.

On the final issue 4, relying on Umeakuana vs. Umeakuana (2009) 3 NWLR (Pt. 1129) 598; Lado vs. C.P.C. (2012) All FWLR (Pt. 607) 598; Dingyadi vs. INEC (2011) All FWLR (Pt. 581) 1428, counsel submitted emphatically that non-compliance with Order V Rule 10 (1) is fatal to the competence of the Petition as the affidavit is also too scanty and therefore does not satisfy the provision of the law. Since the Respondent has not satisfied the condition precedent

for the commencement of the Petition, the Petition should be declared incompetent and the appeal should be allowed.

Respondent’s counsel is Oge Enyindah Esq., who settled the Respondent’s brief filed on 3/11/16 but deemed on 22/1/18. Learned counsel also formulated four issues for determination similarly to the issues formulated by the Appellant in her brief in every respect even to the language.

On issue 1, counsel answered the question in the affirmative and went on to submit that the case of Unegbu vs. Unegbu (supra) relied upon by the Appellant’s counsel does not represent the legal position as there is the latter case of Odusote vs. Odusote (2012) 3 NWLR (Pt. 1288) 478 on the interpretation of Order V Rule 10(1) of MCR stating that the affidavit need not necessarily be endorsed on the petition itself. It is the strong submission of counsel that even if the verifying affidavit does not fall in line with Order V Rule 10 (1), it can be cured by Order XX1 Rule 2 & 3 of MCR as the non-compliance is barely procedural and does not affect the substance of the Petition. The attitude of the Court, counsel submitted is to have a

liberal approach towards Order V Rule 10 (1) MCR relying on Tabansi vs. Tabansi (2009) 12 NWLR (Pt. 1155) 415.

Learned counsel for the Respondent in addressing issue 2 submitted that the answer is in Order XXI Rules 2 & 3 of MCR. The Appellant having receive the process and responded to same, the address being its last place of address cannot complain of lack of service or the issue of change of address after 90 days of service as any non-compliance is as to form and not as to substance.

On issue 3, it is submitted that the lower Court did not make a case out for the Respondent as by law, the lower Court is under obligation to consider processes before it.

Learned counsel to the Respondent still relying on Odusote vs. Odusote (supra) submitted that all that is needed is affidavit verifying the facts in the petition and does not require full blown affidavit. He urged this Court to dismiss the appeal.

In exercising the right of filing a reply brief the Appellant filed a reply brief which mostly is a re-argument of the appeal. This is not the purpose of a reply brief. I will however look at the argument of counsel to the effect that since

what the Appellant is challenging is jurisdiction, it can be raised at anytime and so the fact that it was not raised until after 90 days is of no moment. Counsel relied on Madukolu vs. Nkemdilim (1962) 2 SCNLR 341; Lafia L.G. vs. Exec. Govt, Nasarawa State (2013) All FWLR (Pt. 668) 956. On the issue of service and non-compliance, counsel submitted that the case of Odusote vs. Odusote (supra) was wrongly applied.

The above is the submission of counsel. The issue before this Court in this appeal is narrow and straight forward. It is whether the Respondent in filing his Petition against the Appellant for dissolution of marriage and custody of the children of the marriage found on pages 2-22 of the record is in compliance with Order V Rule 10(1) of the MCR and whether if there is a non-compliance it cannot be cured by Order XXI Rules 2 and 3 of MCR. The answer to the above question will resolve this appeal one way or the other. The Appellant wants this Court to answer the question in the negative while the Respondent wants the answer in the positive. What the parties want is not as important as what the law say on the matter.

A brief reiteration of the facts will not cause any harm. The parties in this appeal are husband and wife. The romance between them went sour. The Respondent in this appeal was the Petitioner who filed a petition at the lower Court found on pages 2-22 seeking for the dissolution of the marriage, custody of the children of the marriage. This was filed on 28/8/11. The Respondent filed a separate document on page 19 of the records tagged ‘Affidavit verifying Petition’ which document or writing should have been written on the petition in line with Order V Rule 10 (1) of the MCR. This according to the Appellant is fundamental non-compliance and so a preliminary objection was filed by the Appellant on 11/12/2012 found on pages 43-50 of the records. Earlier to the notice of Preliminary Objection filled by the Appellant challenging the competence of the Petition, the Appellant had filed response to the petition, this was on 7/9/12 found on pages 3-7 of the additional record of appeal. Consequent upon the notice of preliminary objection, the Respondent filed a motion to amend the petition on 10/1/13 found on pages 7-30 of the additional record. The motion

apparently was filed to handle the defect in the Petition as the verifying affidavit was not written on the petition. This motion was not moved before the lower Court considered the notice of preliminary objection. Despite the fact that the motion was not moved, the lower court held that allowing the application will be in line with Order XXI Rules 2 & 3 of the MCR. The lower Court indeed allowed an application that was not moved before it. This is what the Court held on page 59 of the records:
“…The Petitioner in realization of the need to fully comply has filed and contained in the motion on notice dated 10/1/13. Allowing the application when it is heard in the view of this Court would be in line with the objective and purport of Order XXI of the Matrimonial Causes Rules as non-compliance. I have no problems in allowing such an application.”

In the cause of this judgment I will consider how appropriate such an action is but for now, I will be adopting the issues for determination formulated by the Appellant which was similarly adopted by the Respondent. I will reproduce the issues as I consider them one after the other.

I will start with issue 1 which states thus:
Whether the failure of the Respondent/Petitioner to write the Verifying Affidavit on the Petition as prescribed by Order V Rule 10(1) of the Matrimonial Causes Rules, 1983, is not fatal to the Petition.

interpretation is clear. The rules of interpretation is clear in this respect to the effect that using the literal rule of interpretation, the words in the above provision will be given their normal and usual grammatical meaning. See Abegunde vs. Ondo State House of Assembly & Ors (2015) 8 NWLR (Pt. 1461) 314; PDP vs. INEC & Ors (2014) 9 SC 141.
The words in a statute on its own have no life except when the words are given interpretation by a Court. There are rules of interpretation which will guide the Court in carrying out its mandate in judicial interpretation which is to find the intention of the law maker. In doing that the Court will first apply the literal rule, which is to give the words in the statute their usual and normal ordinary meaning. See Gana vs. SDP & Ors (2019) LPELR-47153 (SC) where the apex Court held:
“The literal rule of statutory interpretation is that words must be given their plain and ordinary meaning unless to do so would lead to absurdity or injustice. See: Ogbunyiya Vs Okudo (1979) 6 – 9 SC 32; Abegunde Vs Ondo State House of Assembly & Ors. (2015) 8 NWLR (Pt. 1461) 314 @ 357 A – D; Ahmed Vs Kassim (1958) 3

FSC 51; Olanrewaju Vs Governor of Oyo State (1992) 11 – 12 SCNJ 92.”
Similarly, this Court per Ige, JCA in a recent decision in Suswam vs. FRN & Anor (2020) LPELR-49524 (CA) had this to say:
“This appeal revolves around the real intention of the National Assembly of Nigeria in enacting Section 98 into the Administration of the Criminal Justice Act 2015 which provides as follows:- “98.(1) The Chief Judge of a High Court may, where it appears to him that the transfer of a case will promote the ends of justice or will be in the interest of the public peace, transfer any case from one Court to another. (2) The power of the Chief Judge referred to in Subsection (1) of this Section shall not be exercised where the prosecution has called witnesses. (3) Where the chief Judge is to exercise this power subsequent to a petition, the Chief Judge shall cause the petition to be investigated by an independent body of not more than three reputable legal practitioners within one week of receipt of such petition. (4) The investigating body shall submit its report within two weeks of appointment except otherwise specified.” There is no doubt that the

principles of Interpretation of a Constitution and Statutes are well settled. The trite law is that provisions of a Constitution or Statute must be construed or interpreted literally giving the words in such Constitution or Statute their ordinary grammatical meaning. The provisions must be read as a whole and not in isolation in order to bring out succinctly the real intention and desire of the law makers. A Court or Tribunal must ensure that it does not put or introduce any interpretation that will engender confusion into the provisions of the law being construed. See – 1. OCHOLI ENOJO JAMES SAN VS. INEC & ORS (2015) 12 NWLR (PART 1474) 538 AT 588 D – G per KEKERE-EKUN JSC who said: “In interpreting the provisions of the Constitution and indeed any statute, one of the important considerations is the intention of the lawmaker. In addition to giving the words used, their clear and ordinary meaning (unless such construction would lead to absurdity), it is also settled that it is not the duty of the Court to construe any of the provisions of the Constitution in such a way as to defeat the obvious ends it was designed to serve where another construction equally

in accord and consistent with the words and sense of such provisions will serve to enforce and protect such ends. See: Mohammed v. Olawunmi (1990) 2 NWLR (Pt. 133) 458; Rabiu v. The State (1981) 2 NCLR 293; Adetayo v. Ademola (2010) 15 NWLR (supra) at 190-191 G- A; 205 D- F.” 2. COCACOLA NIGERIA LTD & ANOR VS MRS TITILAYO AKINSANYA (2017) 17 NWLR (PART 1593) 74 AT 121 G – H TO 122 A – B per EJEMBI EKO, JSC who said:- “It is only when the words of the statute are capable of two interpretations: one leads to absurdity, and the other does not, that the Court will conclude that the legislature does not intend the absurdity and will adopt the other interpretation that does not lead to any absurdity. The judex neither makes laws nor does it possess any power to amend any statute. Intent of the lawmaker and or the purpose in forming the enactment of the particular provisions of a statute are intertwined. It is from the words of the statute and no other source, that the intention of the framers of a statute or Constitution must be ascertained. Thus, as ADEREMI, JSC, stated in Action Congress v. INEC (2007) 12 NWLR (Pt. 1048) 222 at 318 para. F, (2007) 6 SC

(Pt. 11) 212: “a judge’s duty which is even a command on him is to interpret the clear and unambiguous words according to their ordinary, natural and grammatical meanings and must not add to or remove any words therefrom; no onerous weight or burden must be foisted on an otherwise clear and unambiguous provision.” 3. APC & ANOR VS. ENGR. SULEIMAN ALIYU LERE & ANOR (2020) 1 NWLR (PART 1705) 254 AT 284 F-G per RHODES- VIVOUR, JSC who said:- “Where the words used in a statute are clear and free from ambiguity they should be read and construed as it is without any interpretation or embellishments. The words should be given their ordinary meaning except where such a construction would be ridiculous, not logical and sensible. See A.G. Anambra State Vs. A.G. Federation (1993) 6 NWLR (Pt. 302) P. 692; Mobil v F.B.I.R (1977) 3 SC P. 3; Toriola v Williams (1982) 7 SC P. 27.”
If the literal rule of interpretation will make the Court discover the intention of the law maker, then the Court need not go further. However, if the application of the literal rule will lead to absurdity or create injustice, the Court will be made to apply other rules of

interpretation including the golden rule or mischief rule. See Ojukwu vs. Obasanjo & Ors (2004) 12 NWLR (Pt. 886) 169; AG Federation & Ors vs. Abubakar & Ors (2007) 10 NWLR (Pt. 1041) 1.
The Appellant has interpreted the above order to mean that if the verifying affidavit is not written on the Petition, the Petition is incompetent. According to the Appellant, it is of no moment that the verifying affidavit was filed along with the petition since it was not written on the petition. This is the bedrock of the case of the Appellant relying on Unegbu vs. Unegbu (supra). The Respondent on the other hand is of the view that the requirement that there should be a verifying affidavit does not mean that the words verifying affidavit must be written on the Petition. Both counsel cannot be right as only one will be right and the other wrong. In determining who is right or to find the intention of the law maker, it is important to know what is the purpose of the verifying affidavit? A verifying affidavit in law when required is to affirm the facts as stated in the process for which verification is needed. The verifying affidavit is to verify that

the facts stated in the petition were within his personal knowledge and they are true and he can defend them as his. In this respect, what is important is that the verifying affidavit is filed along with the petition and not later than the petition. It is my view that the purpose of the verifying affidavit will be served if the said affidavit is filed along with the petition and it is of no moment that it was not written on the petition. Insisting that it should be written on the petition otherwise the petition will be incompetent will be insisting on technicality over substantial justice. The current trend is that the Court exists to do justice and in so doing what is important is that the Court must do real and substantial justice and not abstract and technical justice. See Alioke vs. Oye & Ors (2018) LPELR-45153 (SC); Owuru & Anor vs. Adigwu & Anor (2017) 1 NWLR (Pt. 1599) 1.
In a contest between technical and substantial justice, substantial justice will prevail. The question is, what will substantially go wrong if the verifying affidavit is not written on the petition but rather filed along with the petition separately? I do not see any

damage or miscarriage of justice if that happens. The Respondent on pages 19-20 filed the verifying affidavit on 24/8/11. The Notice of Petition was filed on 24/8/11, accompanying the notice of petition filed on the same day and time is the verifying affidavit. The complete document filed on that day at the same time is the petition which had all the subheadings. This covered pages 2-17 of the records. Page 18 of the record contains the certificate relating to reconciliation and pages 19-20 is the verifying affidavit, page 21 is acknowledgment of service while page 22 is a photocopy of the marriage certificate. This is the whole document filed on 24/8/11. The verifying affidavit is part of it and so when the Appellant was served with the petition, he was served the whole document including the verifying affidavit. The verifying affidavit was not filed or served later. It was filed and served at the same time with the petition. I am going through all this to make the point that I do not agree with the Appellant that because the verifying affidavit was not written on the petition then the petition is not competent and therefore the lower court had no

jurisdiction. This does not represent the position of the law rightly in my view. The lower Court referenced to the case of Odusote vs. Odusote (supra) in coming to the conclusion that in the circumstance of the case there was compliance with Order V Rule 10 (1) of MCR. I find this case very instructive. This Court per Garba, JCA (as he then was) held thus:
“The case of UNEGBU v. UNEGBU (supra) was distinguished by learned Counsel and he urged us to resolve the issue against the Appellant. I would pause here to decide this issue. The provisions of Order V Rule 10(1) of the Matrimonial Causes Rules which were said to have been contravened by the Respondent’s petition are as follows:-
“A Petitioner shall, by an affidavit written on his petition and sworn to before his petition is filed-
(a) Verify the facts stated in his petition of which he has personal knowledge, and
(b) Depose as to his belief in the truth of every other fact stated in his petition.”
As a matter of fact, these provisions are very simple, unambiguous and clear. They require that a petitioner should swear to an affidavit on his petition before

the petition is filed to verify that all the facts set out in his petition of which he has personal knowledge and then as to his belief in the truth of every other fact in the petition. By the established and recognized principles of interpretation, the provisions are to be ascribed the plain and ordinary meaning in identifying or determination of their object or intention. The use of the word “shall” ordinarily means that the provisions are mandatory because the word is used to express a command or directive which does not admit of a discretion. As a result, a petitioner has no option or choice in complying with the provisions in respect of his petition, but rather has a duty to do so. Compliance with the provisions therefore is a condition precedent to the filing of the petition in the sense that the affidavit required in the provisions must be sworn to by a petitioner before the petition is filed.
The petition must as a requirement of the provisions, contain the affidavit sworn to by the petitioner before it is or can be properly filed. This is the position established and affirmed by judicial authorities including the ones cited above by

the learned Counsel for the Appellant on the issue. However because the affidavit is required to be sworn to before the petition is filed to verify the facts on the petition, the provisions clearly contemplate that the affidavit would accompany the petition by being annexed to and forming part of the processes of the petition to be filed. The provisions do not certainly require that the affidavit shall be endorsed on the petition itself but that it should be sworn on the facts that are set out in the petition. The primary object of the provisions is that a petitioner should make a solemn oath that all the facts set out in the petition are to his knowledge and belief true and correct and as long as the affidavit was sworn to before the petition was filed and it accompanied the petition, the provisions would have been substantially complied with.”
This Court had a similar view in Ojeniran vs. Ojeniran (2018) LPELR-45697 (CA) per Uwa, JCA thus:
“In the appellants first issue, the competence of the petition at the lower Court was challenged. It was the contention of the learned counsel to the appellant that the trial Court had no jurisdiction

to have entertained the petition in that the marriage certificate was not attached to the petition and that the verifying affidavit was also not filed in accordance with the provisions of the Matrimonial Causes Rules, Order V, Rule 27 (6) and Rule 10 (1)…..On the allegation that the verifying affidavit was not sworn before the petition was filed in compliance with Order V Rule 10 (1), from pages 1-2 of the printed records, the Notice of petition was filed on 18/5/15, a verifying affidavit bearing the same date 18/5/15 is at pages 3 – 4 of the printed records while the petition for dissolution of marriage was also filed on the same 18/5/15, at pages 7 – 9 of the printed records. It is clear from these records that the verifying affidavit to the petition was filed on the same day as the petition….. Order V Rule 10 (1) provides as follows:
(1) A petitioner shall, by an affidavit written on his petition and sworn to before his petition is filed
(a) verify the facts stated in his petition of which he has personal knowledge; and
(b) depose as to his belief in the truth of every other fact stated in his petition.”
All that these

provisions require is that an affidavit be sworn to by the petitioner before the petition is filed to verify that all the facts in his petition are true, in his personal knowledge and as to his belief in the truth of every fact in the petition. As rightly argued by the learned counsel to the appellant, by the use of the word shall in the provisions ordinarily means that the provisions are mandatory and are to be complied with as a condition precedent to the filing of the petition, which implies that the affidavit must be sworn to by the petitioner before the petition is filed, to verify the facts in the petition. Therefore, the provision contemplates that the affidavit would accompany the petition by being annexed to and forming part of the petition to be filed. Therefore, the important thing is that the petitioner swears to the truth of the facts set out in the petition, to his knowledge and belief. As long as the affidavit is sworn to before the petition was filed and it accompanied the petition, the requirement under Order V, Rule 10 (1) would have been met. In the present case, the verifying affidavit at pages 3 – 4 of the records of appeal preceded the

petition at pages 7 – 9 of the printed records. The affidavit formed part of the petition. The learned counsel to the applicant cannot therefore rightly argue that there was non-compliance with the Matrimonial Causes Rules, there was compliance.”
On the premise that the verifying affidavit was filed along with the notice on the same day, I have no difficulty in resolving issue 1 in favour of the Respondent.

Now to issue 2, this in my opinion is yet another technical issue. For emphasis sake, I must make the point again that the law has far moved away from technical justice to substantial justice. What a Court is called upon to do is to decide the right between parties before it to ensure that there is no miscarriage of justice. Substantial justice in my opinion means that even if there are some misnomer in procedure or sometimes in the application of the law, if it will not amount to miscarriage of justice the law will allow it to pass except if the law makes it a requirement and gives it so much preeminence, for instance on the issue of service.

The law has gone on to make a distinction between improper service and lack of service.

In Davies & Ors vs. Odofin & Ors (2017) LPELR-41871 (CA), this Court per Georgewill, JCA placed this distinction thus:
“There is in law a world of differences between improper service and non-service at all. While, a process improperly served could be ordered by Court to be properly served, a process not served at all is ipso facto invalid.”
The focus of the Court is to do justice in its substantial sense and not in its technical sense. The Appellant’s challenge in issue 2 is not whether the Appellant was served or not but that the service was improper as it was served by substituted means and on an address which is different from the original address of the Appellant. The Appellant’s address for service was stated as No 6, Ethiopia Close, Maitama, Abuja. This is what the Respondent stated as the Appellant’s address on page 17 of the records. The certificate of service filed by the bailiff in Abuja found on page 23 of the record states clearly that the Appellant could not be served in that address as the Appellant has vacated the premises. This was dated 6/9/11. Consequent upon this, the Respondent filed a notice of change

of the Appellant’s address from No. 6 Ethiopia Close, Maitama, Abuja to No 11, Akin Ogunlewe Street, Victoria Island, Lagos. This was filed on 21/9/11. The Respondent then brought a motion before the lower Court for substituted service on 20/4/12 found on pages 27-28 of the record. The motion was granted and the order was made on 30/4/12 found on pages 34-35 of the records. In accordance with the order the Appellant was served in the Lagos address by substituted means. This is found on page 37 of the record. There is evidence of service by substituted means.
In the circumstance of this case, I am really at a loss as to the argument of the Appellant’s counsel on this issue. The bailiff went to serve the address known by the Respondent where the Appellant stays in Abuja. It was discovered the Appellant no longer stays there and that she has moved to Lagos. The Respondent brought a notice for change of address of the Appellant. The Appellant is arguing that she should have been the person to bring motion for the change of address. I am wondering how? When the Appellant is not aware of the proceedings for dissolution of the marriage, how could

she have filed a change of address over a matter she knows nothing about? That does not make sense to me at all. It is when she comes to know about the processes that she can take steps on the processes. The Respondent filed the change of address and then brought a motion for substituted service which the lower court granted. It is on the strength of that, that the processes were served. I really do not see where the Respondent got it wrong here. I certainly do not. I do not agree with the submission of counsel that the notice of change of Appellant’s address amount to amendment of the process. While it is not disputed that service of Court process is fundamental and where a party to a suit is not served, the whole proceeding will amount to nullity, the circumstance of this case does not fall into that category. Cases are to be decided on their peculiar facts and circumstances. In Owor vs. Christopher & Ors (2008) LPELR-4813 (CA) this Court per Abdullahi, JCA while stating this trite principle held:
“Learned Counsel for the 1st Respondent rightly submitted in my view that the views canvassed by the Appellant are misconceived and

clearly at variance with settled position of our law as manifestly enumerated by the lower Tribunal in its judgment at pages 419 to 426 of the record. In support of the above views, learned Counsel for the Appellant relied on the cases of Nwosu v. Udeaja (1990) 1 NWLR (Pt. 125) p. 188 and Ikeni v. Efamo (2001) 10 NWLR (Pt. 720) 1 at 11, 12 and 15. Let me pause at this stage and say that these cases on this issue are distinguishable and inapplicable to the instant appeal both on grounds of fact, law and mixed law and facts. I will explain. Firstly, a decision is an authority for what it actually decided since every Court is only entitled to decide the issue or issues raised on the claim or claims before it. See Western Steel Works v. Iron and Steel Workers (1987) 1 NWLR (Pt. 49) 284 at 297. Secondly, it is trite law that a previous decision is not to be followed where the facts or law applicable in that former decision are distinguishable from those in the latter case. See the case of Adisa v. Oyinwola (2000) 10 NWLR (Pt. 674) 116 at 168. Thirdly, the case of Nwosu v. Udeaja, Ikeni v. Efamo cited by the learned counsel for the Appellant are distinguishable from

the instant case both on grounds of fact and law. The fact of the matter for instance in the case of Nwosu v Udeaja (supra) is on declaration of title to land and the Exhibits referred to therein are judgment of Court. Furthermore, the fact of the matter for instance in the case of Ikeni v. Efamo (supra) bothers on dispute over entitlement to compensation money payable by Nigerian Agip Oil Company Limited and on how to enforce judgment of previous Court which led to the Court raising the issue of Estopel res judicata therein. Finally, in the case of Adeniji v. Onogoruwa (supra) the fact of the case is on declaration of title to land and the Exhibits referred to therein be purchase receipts. The instant case dealt with election matter and the documents in issue are photocopies of the certified true copies of the public documents quite distinguishable both on fact and law from the three (3) cases cited by the learned Counsel for the Appellant. Against the backdrop of the above, I am of the view that even if those decisions were binding on the tribunal, it does not represent the law on this matter, but the Tribunal came to the correct decision, an appellate Court

will not reverse that correct decision. See Lebile v. The Registered Trustees of Cherubim and Seraphim of Zion of Nigeria, Ugbonla & Ors (2003) 2 NWLR (Pt. 804) 399, at 422 to 423. The apex Court in that case held thus: “It does not matter that the Court below may not have gone into the available details of circumstances which, put together and considered, must lead to the conclusion that the Plaintiff’s claim was properly dismissed. It is in law enough that it reached the right decision as I consider it did. In other words, if the conclusion read by the Court below is correct, that cannot be affected by the fact that it was arrived at on insufficient or even some wrong reasons…”
I will also like to consider the statement of Wambai, JCA in Mai-Kiri vs. Yahaya (2018) LPELR-46595 (CA) on this point:
“I am aware that in a related case of LIMAN GANDI V ALH. ABDULKADIR YAHAYA Appeal No. CA/S/91/2017 delivered on 28th November, 2018, the facts of which are distinguishable and not on all fours with the present appeal, this Court allowed the appeal on ground of inconsistencies in the Respondent’s case and absence of proper evaluation of

evidence by the trial Court. In that appeal unlikely in the present, there were material contradictions not only between the evidence of PW1 and PW2 but also as between their evidence and the pleaded fact on the question of actual quantity and the cost price of the bales of wrappers supplied to the Appellant. Those contradictions materially touch on the Appellant’s claim at the lower Court. Therein, while it was the evidence of PW1 that 160 dealers of wrappers were supplied to the Appellant at the total cost of N13,120,000 (Thirteen Million, One Hundred and Twenty Thousand Naira Only), the evidence of PW2 therein was that only 130 bales of wrappers at the total cost of N10,400,000.00 (Ten Million Four Hundred Thousand Naira Only) were supplied to the appellant. The computation of the figures were at variance with the pleadings in para. 20 of the statement of claim. While the appropriate quantity of bales that would have given the figure of N4,377,530.00 therein claimed, is approximately 50 bales, PW2 talked about 100 bales. These contradictions materially touch on the core of the Respondent’s claim. Another striking distinction between that appeal and

the present one is that, in that appeal, the appellant not only took the list of the debtors to the Respondent but respondent agreed to deal with the debtors directly. It is trite that it is the facts of any given case that will frame the issues for decision and the facts of two cases must be either the same or at least similar before the decision in one case can be used as a guide to the decision of another case. In CHIEF GANI FAWEHINMI V. N.B.A. (No.2) (1989) 2 NWLR (Pt.105) 558 AT 650, Oputa JSC of blessed memory had this to say inter alia: “… The facts of two cases must be either the same or at least similar before the decision in one can be used and even there as a guide to the decision in another case. What the former decision establishes is only a principle not a rule. Rules operate in all or nothing dimension. Principles do not. They merely form a principium, a starting point. Where one ultimately lands will then depend on the peculiar facts and circumstances of the case in hand.” Thus, as stated by the great jurist, decisions of Courts based on peculiar facts of one case cannot be applied across board to another case with distinct and different facts

and circumstances. Decisions of Courts draw their inspiration and their strength from the very facts which framed those issues for decision. It follows that the decision of this Court in appeal NO. CA/S/91/2017 whose facts and circumstances are different from the present appeal cannot be a guide to this appeal.”
I resolve this issue again in favour of the Respondent.

Issue 3 reads thus:
Whether the trial Court was not making out a case for the Respondent/Petitioner in holding that the defects in the Respondent’s Petition can be corrected by an amendment?

The Appellant submitted that the lower Court made a case for the Respondent. If this is correct, the lower Court would have gone outside the duty it has. It is true, a trial Judge and indeed, a Judge is not allowed to conduct a case for any of the parties because the Court is an unbiased umpire. See Kaydee Ventures Ltd vs. The Hon. Minister FCT & Ors (2010) 7 NWLR (Pt. 1192) 171; Maersk Line & Anor vs. Addide Investment Ltd & Anor(2002) 11 NWLR (Pt. 778) 317; Addah & Ors vs. Ubandawaki (2015) 1 SC 1; Buhari vs. INEC & Ors (2009) 1 FWLR (Pt. 459) 1461;

Apampa vs. State (1982) 4 SC 47. Similarly, the decision of Courts should not be based on speculations and sentiment. See Ezeugo vs. Ohanyere (1978) 6 S.C. 17; Mohammed Idrisu vs. Modupe Obafemi(2004) 11 NWLR (Pt. 884) 396 @409. The argument of the Appellant was that the lower Court referred to a motion filed by the Respondent which was not moved and was intended to overreach the preliminary objection. This is the appropriate time to address the point whether the lower Court was right to have done that. It is clear that the lower Court actually made reference to the motion on notice of 10/1/13 for amendment of the petition. To appreciate this issue, allow me to briefly look at the record to state again the facts as it relates to this issue. The Respondent’s Notice of Petition did not have the verifying affidavit written on the petition. The Appellant filed a preliminary objection on 11/12/12, to remedy the perceived error, the Respondent filed the motion to amend the petition. The lower Court took the preliminary objection alone and never took any argument on the motion for amendment and yet used it in determining the motion for preliminary objection. The counsel to

the Respondent tried to justify this by submitting that the Court has powers to look at all processes before it. While this is correct vide PDP & Ors vs. Ezeonwuka & Anor (2017) 4-5 SC (Pt. IV) 1 but this principle cannot be used at the expense of fair hearing. All parties before a Court have the right to be heard in all matters before the Court. It is of importance to say that the motion which the lower Court referred to which was not argued was to overreach the Appellant’s notice of preliminary objection. The determination of the motion will affect how the preliminary objection should go and therefore the lower Court should not have allowed a motion that was not argued to impact on its decision for a preliminary objection that is before the Court. The lower Court should have consolidated the motions and take arguments on both motions and ruled on them. The lower Court denied the Appellant the right to make submissions on the motion for amendment before using it as one of the grounds for determining the preliminary objection. The point I am laboring to make in the most courteous way I can is that the lower Court was wrong in shutting out the Appellant

from the motion for amendment before using it to determine the preliminary objection.
I must however hasten to add that in view of my resolution of issue 1 in favour of the Respondent, it stands to reason that there is no fundamental miscarriage of justice as the motion for amendment will be of no moment since I have held that the argument of non compliance will not stand as the petition does not offend Order V Rule 10 (1) of MCR. I cannot therefore on good conscience hold that the lower Court made a case for the Respondent. I also resolve this issue in favour of the Respondent.

On the fourth and final issue, the Appellant counsel submitted that the verifying affidavit is scanty and does not properly verify the facts in the petition. A verifying affidavit is not supposed to be an affidavit that reproduces the averments in the document it is verifying. It is just an affidavit that attest to the correctness of the statement or facts in the document. It is a test of veracity of the statement. An affirmation that the statement is true and that they are within his personal knowledge and they can confirm them to be true is sufficient. The verifying

affidavit is supposed to establish the truth, the accuracy and the reality of the statement and indeed to confirm and affirm same. The verifying affidavit therefore does not need to be lengthy. Once the affidavit states that the facts within his personal knowledge are true and those from others are believed to be true, the Respondent would have satisfied the requirement of the law. This the Respondent has done in paragraphs 3 and 4 of the verifying affidavit. I reproduce them for ease of reference:
“3. That I have personal knowledge of the facts stated in the petition herein which facts are true in every material particular.
4. That such of the statement in the petition herein as relate to my own acts and deed are true and such of the said statement as relates to the acts and deeds of any other person or persons I believe to be true.”
If the above paragraphs do not satisfy Order V Rule 10 (1) as it relates to verifying affidavit, I wonder what it is. I do not think that the Respondent is required to be detailed as to what statements are within his personal knowledge and those that he believed. That will be demanding too much of him.

See Yahuza & Ors vs. Agu & Ors (2017) LPELR-44028 (CA); Hamadu Ali Agencies Ltd vs. Fidelity Bank & Ors (2019) LPELR-47981. The Respondent has satisfied the requirement of the law. I also resolve this issue in favour of the Respondent.
Before I make the final order, it is of great importance that Order XX1 Rules 2 and 3 has made provision that even if there is non-compliance as argued by the Appellant, it would not nullify the proceedings or judgment of a Court. This Court made this point in Ojeniran vs. Ojeniran (supra) where it held per Uwa, JCA:
“On the other side of the coin, the Matrimonial Causes Rules also made provision for the Court to dispense with the need for compliance with the Matrimonial Causes Rules under Order XXI Rules 2 and 3 which provide as follows:
(2) Non-compliance with Rules not to render proceedings void. Subject to these Rules, non-compliance with these Rules, or with a rule of practice and subject to these Rules, non-compliance with these Rules, or with a rule of practice and procedure of a Court applicable under the Act to proceedings, shall not render proceedings void unless the Court

so directs, but, the proceedings may be set aside, either wholly or in part as irregular, or may be amended or otherwise dealt with in such manner and upon such terms as the Court may think fit.
(3) Court may relieve party from consequences of non-compliance. Subject to the Act and to these Rules-
(a) A Court may at any time, upon such terms as the Court thinks fit, relieve a party from the consequences of non-compliance with these Rules, with a rule of practice and procedure of the Court applicable to the proceedings or with an order made by the Court;
(b) A Court may, upon such terms as the Court thinks fit, dispense with the need for compliance by a party with any provision of these Rules.
The essence of the above provisions is that non-compliance with any of the provisions of the Rules would not render the proceedings void as urged by the learned counsel to the appellant but, confers the Court with the discretion to relieve a party from the consequences of non-compliance or dispense with the need for compliance by a party with any of the provisions of the Rules. This is so to ensure that substantial justice is done without deciding

the parties case on technicalities as to form and not the substance of the case. Therefore, any non-compliance if at all, is an irregularity which should not be allowed to defeat the cause of justice. See ODUSOTE VS. ODUSOTE (supra) and MGBEAHURUIKE VS. MGBEAHURUIKE (2017) LPELR 42434 (CA) and AMAECHI VS. INEC (NO. 3) (2007) 18 NWLR (PT. 1065) P. 105 . I hold that the petition before the lower Court was competent.”

On the whole, this appeal fails in its entirety and it is dismissed. The ruling of William- Dawodu J (Mrs) (as she then was) of the Lagos State High Court Family and Probate Division in Suit No HD/279/2011- Chief Evaristus Imoh vs. Mrs Gloria Nkolika Imoh delivered on 22/5/2013 is hereby affirmed and upheld.
Parties are to bear their respective cost.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree with the concise judgment prepared by my learned brother, Ebiowei Tobi, J.C.A., and desire, if I may, to stress that since an issue of jurisdiction can be entertained at any stage of the case, it is prudent and would accord with good sense to take it along with the substantive action to save time and cost and avoid the bane of

protracted/exhausting litigation vide Amadi v. NNPC (2000) 10 NWLR (pt. 674) 100, Continental Trust Bank v. Balogun (2003) FWLR (pt.162) 1908, Senate President v. Nzeribe (2004) 9 NWLR (pt878) 251 at 274, African Petroleum Ltd. v. Adeniyi (2011) 15 NWLR (pt. 271) 560, CBN v. Akingbola (2019) 12 NWLR (pt.1685) 84 where the Supreme Court affirmed the Court of Appeal decision in the case of C.B.N. v. Akingbola (2013) 3 B.F.L.R. 128 at 153-154.

BALKISU BELLO ALIYU, J.C.A.: I had the privilege of reading in draft the judgment just delivered by my learned brother Ebiowei Tobi, JCA. I agree with his reasoning and the conclusion reached that this appeal lacks merit and I join him in dismissing it. I affirm the decision of the trial Court and abide by the consequential orders made therein. Appeal dismissed by me.

Appearances:

B. Okoro Esq. For Appellant(s)

ABSENT For Respondent(s)