LOVINA IFEOMA EBE V. EDWIN EBE
(2003)LCN/1353(CA)
In The Court of Appeal of Nigeria
On Monday, the 10th day of March, 2003
CA/E/132/2001
Before Their Lordships
MAHMUD MOHAMMEDJustice of The Court of Appeal of Nigeria
SULE AREMU OLAGUNJUJustice of The Court of Appeal of Nigeria
CLARA BATA OGUNBIYIJustice of The Court of Appeal of Nigeria
Between
LOVINA IFEOMA EBEAppellant(s)
AND
EDWIN EBERespondent(s)
RATIO
THE PRINCIPLE OF AUDI ALTERAM PARTEM
There is, therefore, a breach of the principle of audi alteram partem that posits that in a judicial trial both parties to the dispute must be heard. The consequence of the breach of that rule is well spelt out, by this court in its recent decision in NASCO Management Services Ltd. v. A. N. Amaku Transport Ltd. (2003) 2 NWLR (Pt.804) 290, where the court, per Mangaji, JCA, of blessed memory, expounded at pages 338-339, that:
“Where service of hearing notice is called for any proceedings conducted without due issuance of it is rendered null and void. It is a fundamental vice which easily vitiates proceedings. Where proceedings are conducted when no hearing notice is served on a party who should have been necessarily served the whole proceedings are rendered void no matter how well conducted they were. See Obimonure v. Erinosho (1966) 1 All NLR 250; Skenconsult (Nig.) Ltd. v. Ukey (1981)
1 SC 6 at 26-27; Wema v. Odulaja (2000) 7 NWLR (Pt.663) 1.” PER OLAGNU, JC.A
WHETHER OR NOT A JUDGEMENT FILLED WITH ERRORS IS PERVERSE
A judgment punctuated by such flagrant and fatal errors is perverse within the meaning of that expression in Adimora v. Ajufo (1988) 3 NWLR (Pt.80) 1, 16; and Odiba v. Azege (1991) 7 NWLR (Pt. 206) 724, (1998) 7 SCNJ 119, 127, as it paid scanty regard to the law. Such a judgment cannot be allowed to stand.
Because of the incompetence of the petition as resolved in issues 1, 2 and 3 herein the trial court had no jurisdiction to entertain the action in the first place. Therefore, guided by the principles enunciated variously in Adesokan v. Adetunji (1994) 5 NWLR (Pt. 346) 540, (1994) 6 SCNJ (Pt. 1) 123, 144-145; Ejike v. Ifeadi (1998) 8 NWLR (Pt. 561) 323, (1998) 6 SCNJ 87,101; and Ovenseri v. Osagiede (1998) 11 NWLR (Pt. 572) 1, (1998) 7 SCNJ 188, 195, the proper order to make in the circumstances of this appeal is to strike out the petition. Accordingly, the appeal succeeds and it is allowed.PER OLAGNU, JC.A
SULE AREMU OLAGUNJU, J.C.A. (Delivering the Leading Judgment): The appeal is from the decision of Nebo, J., of the Enugu Judicial Division of the Enugu State High Court in which the divorce petition filed by the respondent before this court as the husband of the appellant herein praying for dissolution of their marriage was granted and the marriage was dissolved upon order nisi granted on 1/12/97 that became absolute three months later.
The facts from which the dispute arose are succinctly that following failure of the appellant to reply to the respondent’s petition until about 21 days after the time stipulated in the notice of petition to do so the petition was heard as an undefended suit but without putting the appellant on notice of the proceedings.
On the events leading to hearing of the suit as undefended, it is common ground that the notice of petition to which a sealed copy of the petition was attached was filed on 24/3/97 in paragraph 9 of which the appellant as the respondent was enjoined to file an answer with her address for service within 20 days after the service of the notice on her or within such extended time as might be allowed by the Matrimonial Causes Rules. It is also common ground that the following steps taken by the parties and the court below culminated in the trial: on 30/4/97 the petition was duly served on the respondent; on 5/6/97, (a) the petitioner applied (on Form 31) that the action be set down for trial as an undefended suit; (b) the registrar issued registrar’s certificate (Form 34) that the suit was ready for trial and followed by a notice of trial (Form 33) setting down the suit for trial on 13/6/97 at the High Court No.5; (c) on 13/6/97 the case was mentioned in court but at the instance of the petitioner’s counsel it was adjourned to 27/6/97 for hearing and (d) on 18/6/97 the appellant as respondent to the petition filed her answer to the petition.
Against this background, the trial began on 27/6/97 and continued on 23/7/97 with learned counsel for the petitioner addressing the court on 30/7/97 when the case was adjourned to 22/10/97 for judgment which was eventually delivered on 1/12/97. Thus, the appellant who filed her answer to the petition without leave of the court was absent from the court throughout the proceedings. In any case, as I noted earlier, the suit was heard as undefended at the end of which the petitioner was granted a decree nisi on 1/12/97 which was deemed by operation of law to be absolute on 1/3/98. On 7/5/98, the respondent to the petition filed a motion praying the trial court to set aside the judgment of 1/12/97 and to hear the case afresh because the respondent was not aware of the proceedings of the trial court as she was not put on notice of the trial and that the news about the divorce proceedings at the trial court filtered through to her as rumours when the petitioner was bragging about his impending marriage to another woman. The application was refused by the learned trial Judge on the grounds that (a) the respondent having failed to obtain leave of the court before filing answer to the petition out of the stipulated time the suit was rightly tried as an undefended action for which there is no duty on the court under the Matrimonial Causes Rules to put the respondent on notice of the hearing and (b) the application was not brought within a reasonable time.
Dissatisfied with the judgment of the trial court, the respondent before that court who is the appellant before this court is challenging the decision on 4 grounds of appeal from which she formulated for determination the following 4 issues:
“(1) Whether the trial court was right to have heard the petition in the absence of the appellant who was never informed of the court of hearing and the date of hearing; and was never aware that proceedings were going on?
(2) Whether the trial court was right to have heard the petition when the said court did not firstly make an order dispensing with the naming, of the unnamed adulterers alleged in the petition?
(3) Whether the trial court was right to have proceeded to hearing of the petition when some named adulterers were not made parties to the petition?
(4) Whether the trial court was right in giving judgment to the petitioner when the latter did not meet the standard of proof required in dissolution of marriage based on adultery?”
The appellant having attested that the respondent’s counsel was duly served with the appellant’s brief of argument on 6/11/2001 but no brief of argument was filed by the respondent till the time to do so ran out the appellant applied and was granted permission that this appeal be heard on the appellant’s brief of argument alone. The implication is that the respondent would be deemed to have admitted the truth of everything said in the appellant’s brief in so far as such is borne out by the record but not without a critical appraisal of the truth: see Lagricom Company Ltd. v. Union Bank Ltd. (1996) 4 NWLR (Pt.441) 185, 196. I must also add as a rider that the appellant’s submissions on points of law would be carefully sifted so as to be satisfied that notwithstanding the respondent’s tacit abandonment of the appeal not only by not availing this court of his own side of the story by filing no brief of argument but also by not appearing in court, the default would not deflect the traditional dispassionate poise of justice that is guided by candour and fairness conceding shortcomings as a chink in human armour. Accordingly, this appeal will be considered on the appellant’s brief of Argument alone and to this end I will begin with issues 2 and 3 taken together.
On issue 2, learned counsel for the appellant contended that the lower court was in serious error of law in setting down the petition for hearing when the petitioner did not obtain court order to dispense with the naming of certain persons alleged in paragraphs 8E, 8H, 8I, 8J and 8K of the petition to have committed adultery with the respondent as provided by rule 3 of Order IX of the Matrimonial Causes Rules. Getting the necessary dispensation not to name the unknown adulterers, he contended, is a condition precedent to setting down for hearing a petition for a decree of dissolution of marrrriage and submitted that failure to fulfil the condition precedent before hearing the case robbed the trial court of jurisdiction to entertain the action. Therefore, he urged this court to hold that it is an irreversible error which vitiates the trial.
The substance of the argument on issue 3 which is complementary to issue 2 is that the petitioner having alleged in paragraph 8C and 8D of the petition that two men called ‘Ugochukwu’ and ‘Uche’ committed adultery with the respondent the two adulterers must be made parties to the action by virtue of section 32 of the Matrimonial Causes Act, Cap. 220 of the Laws of Federation of Nigeria, 1990. In further support of his argument he cited sub-rule 4(2)(b) of Order IX of the Matrimonial Causes Rules, albeit inappropriately as the petition under review is not an amended one contemplated by that rule the names of Ugochukwu and Uche having been expressly mentioned in the petition. However, he submitted that as the two named adulterers were not joined as parties the action is not properly constituted and, therefore, incompetent.
As a primary point, issue 3 deals with the constitution of the action that is centered on section 32(1) of the Matrimonial Causes Act, Cap. 220 of the Laws of Federation of Nigeria, 1990, which provides as follows:
“Where, in a petition for a decree of dissolution of marriage or in an answer to such a petition, a party to the marriage is alleged to have committed adultery with a specified person, whether or not a decree of dissolution of marriage is sought on the basis of that allegation, that person shall, except as provided by rules of court, be made a party to the proceedings.”
(italics mine)
Elucidating the provision of that section to identify the exception created by the section is Order IX of the Matrimonial Causes Rules which stipulated three classes of people who must not be joined as parties by the petitioner. Firstly, by sub-rule 5(1) thereof an alleged adulterer who is dead cannot be joined as a party implying that a matrimonial cause does not survive a dead ‘alleged adulterer’.
Secondly, an alleged adulterer who is under the age of 14 years is by sub-rule 6(1) relieved of being made party to a divorce petition though by virtue of sub-rule 6(2) thereof he may of his own volition ask to be joined as an intervener and in that way becomes a party to the action, Thirdly, sub-rules 7(1) and (2) of Order IX precludes the joinder of an infant under the age of 21 years with whom incest is committed by either of the parties to the petition.
The petition not having shown that either Ugochukwu or Uche falls into any of the three categories both of them ought, as enjoined by sub-section 32(1) of the Matrimonial Causes Act, to be joined as parties by the petitioner. Joinder of the alleged two adulterers has thus by virtue of the enjoinment by section 32(1) of Matrimonial Causes Act become a condition precedent to the exercise of jurisdiction by the trial court, On this point, the Supreme Court’s decision in Madukolu v. Nkemdilim (1962) 1 All NLR 587; (1962) 2 SCNLR 341 enumerated three requisites that must be satisfied before a court can exercise jurisdiction only the third of which is relevant on the facts of this case and on which the court expounded, at page 595, that –
” … a court is competent when
X X X
the case comes before the court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction”.
adding, to underscore the gravity of such a lapse, that:
“Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided: the defect is extrinsic to the adjudication.”
The petitioner’s failure to join the two alleged named adulterers, Ugochukwu and Uche, as respondents to the petition as enjoined by subsection 32(1) of the Matrimonial Causes Act has left unsatisfied the condition precedent to the court entertaining the action thus rendering the action to be incompetent on the ground of not being constituted as stipulated by law.
Similarly, as provided by sub-rule 3(1) of Order IX of the Matrimonial Causes Rule, allegation by a petitioner that the respondent has committed adultery with a person whose name is unknown is a bar to setting down a petition for trial unless the court has been moved to make an order dispensing with the naming of the person. That is also a condition precedent to setting the petition down for hearing. The petitioner having failed to obtain order of the court dispensing with naming the numerous persons alleged to have committed adultery with the respondent on the various occasions enumerated in paragraphs 8E, 8R, 8I, 8J and 8K of his petition setting down the petition for hearing as was done by the registrar of the court below on Form 33 (dated 5/6/97) was in direct conflict with the positive prohibition in sub-rule 3(1) of Order IX of the Matrimonial Causes Rules. It renders any proceedings conducted pursuant to the erroneous setting down of the petition for hearing to be invalid.
Therefore, the errors are sufficient to resolve issues 2 and 3 against the respondent; issue 3, on the ground that the petition was not constituted as stipulated by law for failing to join the named alleged adulterers as respondents; issue 2, for setting down the petition for hearing without obtaining court order dispensing with naming the alleged adulterers whose names are unknown. The two issues are accordingly resolved against the petitioner/respondent.
I now move to issue one which is taken up with the procedure adopted by the trial court for setting down the case for trial and the cause of non-participating in the trial by the appellant which sprang from the erroneous assumption underlying the setting down of the case as an undefended suit. With a view to demonstrating that there was no communication with the appellant of the particular court where the trial of the action was to come up and of the successive hearing dates, learned counsel for the appellant pointed out a catalogue of errors in the court processes issued by the court registrar which he argued led to a widespread violation of the Matrimonial Causes Rules.
He picked to pieces the 3 steps taken to set the case down for hearing, namely, the application by the petitioner on Form 31 to set the case down for hearing as an undefended suit, the registrar’s certificate on Form 34 that the suit was ready for trial and notice of trial on Form 33 intimating that the suit has been set down for trial at High Court No.5 on 13th day of June, 1997. The 3 documents were issued on the same day, i.e. 5/6/97, and the learned counsel wondered whether it was possible for the registrar to scrutinize the numerous pre-conditions in sub-rule 39(3) of Order XI of the Matrimonial Causes Rules within a space of one day. But the more telling of what the learned counsel considered to be anomalous is the incongruity of the numbers of the revenue collector’s receipts endorsed on the documents which did not tally with the sequence of the processes, i.e. the steps laid down to be taken. Whereas Form 31, application to set the case down for trial, was the first step to be taken but it has endorsed on it collector’s receipt No. 027003 as against receipts Nos. 027001 and 027002 endorsed on the Registrar’s Certificate that the suit was ready for trial and notice of trial, respectively. The sequence gives rise to suspicion of manipulation the learned counsel insinuated pointing out that there was no address for service on any of the three documents as a vindication of the fact that the three documents, especially notification of trial, could not have been served on the appellant and that, indeed, none was in fact served on the appellant.
The learned counsel attacked the reasoning of the learned trial Judge that because the petition was being heard as an undefended suit there was no need to put the appellant on notice of the hearing of the suit, as no provision was made for that contingency under the matrimonial Causes Rules. He contended that the opinion of the learned trial Judge is contradicted by rule 46 of Order XI of matrimonial Causes Rules that makes comprehensive provisions for service of notice of trial on the respondent in the appellant’s situation.
That apart, he further contended that as a general principle service of hearing notice on a party to an action is an important adjunct of the principles of fair hearing that have their root in the ancient rule of natural justice.
On the consequence of failure to observe the rule of fair hearing under our legal system, he submitted that failure to notify the appellant, qua respondent at the trial court, that the suit was set, down for hearing and of the court and date of hearing was a fundamental breach of the rule of fair hearing that renders the entire proceedings of the trial court a nullity. He quoted extensively dicta from material parts of decision on the implications of conducting contentious judicial proceedings without putting one of the parties on notice. The choice philosophical hardware upon which the learned counsel drew to underscore the errors of the court below include Obimonure v. Erinosho (1966) 1 All NLR 250; Scott-Emuakpor v. Ukevebe (1975) 12 SC 41, 47; Skenconsult (Nig.) Ltd. v. Ukey (1981) 1 SC 6, 26; Food and Commodities Ltd. v. Aremu (1990) 2 NWLR (Pt. 134) 254, 261-264; Ozowala v. Ezeiheshie (1991) 1 NWLR (Pt.170) 699, 707; and Onyekwulunne v. Ndulue (1997) 7 NWLR (Pt. 512) 250, 259. The learned counsel submitted that failure to serve the appellant with the notice of trial is a breach of her constitutional right of fair hearing which also amounts to failure to fulfil the condition precedent to entertain the action and robbed the trial court of the jurisdiction to hear the case. He concluded that the combined errors render the proceedings of the court below a complete nullity.
There is an overlapping of the point canvassed in this issue with the point examined in issue 2 on setting the action down for hearing. Having come to the conclusion on issue 2 that setting the petition down for hearing without fulfilling the condition precedent, that is to say without obtaining the court order dispensing with the naming of the unknown alleged adulterers, vitiates the proceedings of the trial court I do not need to go over that point again in whatever slant it may be couched. Therefore, on issue one I will limit myself to the second limb of the issue which is non-participation by the appellant in the proceedings at the court below that is attributed by her counsel to failure to put her on notice of the trial and of the ensuing proceedings of that court, an allegation that impinges precariously upon violation of the appellant’s right of fair hearing.
Within the frame of reference set the argument about whether the respondent at the trial court was put on notice about the court where her case was coming up and the date when the petition was coming up is settled on the face of Forms 31, 33 and 34 initiating the setting down of the petition for trial. The question of whether the three Forms are fabricated because of the anomaly in the endorsement of the collector’s receipts on those documents insinuated by learned counsel for the appellant does not, in my view, fall to be decided. It will be enough to say that such a lapse should rattle the efficiency rating of the office of the registrar of that court in its wider definition in sub-rule 4 (1) of Order 1 of the Matrimonial Causes Rules as an indication that any document originating from the Registry of that court cannot be taken at face value.
However that may be, as submitted by learned counsel for the appellant, on none of the three Forms, especially Form 33, notice of trial, is the address of the appellant shown. The inference is compelling that notice of trial could not have been served on the appellant as enjoined by sub-rule 46(1) of Order XI of the Matrimonial Causes Rules where service address is not indicated on such notice. That inference is strengthened by the absence on the notice of trial produced as page 16 of the record of any endorsement as enjoined by sub-rule 46(3) (c) of Order XI nor is there on record certificate of compliance as stipulated by sub-rule 46(6) thereof. From the record of the forms initiating setting down the petition for trial any argument that the respondent was served with Form 33, nullification of trial, containing the court where the case was to be heard and the date of hearing is negative. Therefore, the conclusion is in escapable that the respondent was not served with notification of trial. That negates the sweeping finding by the learned trial Judge on page 62 of the record that ‘the registrar treated the suit as undefended and complied with provisions of Order 11 rules 39 sub-rules (1- 8) before setting the suit down for hearing’. Admittedly, when the respondent did not file an answer to the petition within the time stipulated by paragraph 9 of the notice of petition, albeit wrongly fixed – 20 days as opposed to 28 days enjoined by sub-rule 29(a) of Order V – and when before filing it out of time she did not obtain the consent to waiver of the delay – from the petitioner’s counselor order of the court for waiver the default can by operation of sub-rule 1(1) of Order X of the Matrimonial Causes Rules be treated as entitling the petitioner to treat a well constituted petition as undefended. But here it is different in the light of resolution of issue three that the petition is not well constituted and, therefore, incompetent.
As regards the question of whether the appellant was served with hearing notices of the proceedings at the trial court the learned trial Judge answered the question negatively on page 62 of the record where she said:
“It could also be seen that there is no provision in the rule that the notice of trial should be served on the respondent since the suit is undefended.”
That is straight from the horse’s mouth confirming that no notice of proceedings of the trial was served on the respondent. Reading the provision of rules 39 and 46 of Order XI of the Matrimonial Causes Rules together and not in isolation the opinion of the learned trial Judge that there is no provision in the rules that notice of trial should be served on the respondent is untenable as rule 46 laid down the procedure guiding service of notice of trial which is common to both the defended and undefended suits. Otherwise, how else can the use of Form 33 for notification of trial for undefended suit be explained when the use of that Form is prescribed by sub-rule 46(1) only but is not mentioned in sub-rule 39(1) which is the first step to be taken in the process of setting down an undefended suit for trial.
Whatever may be the misgivings by the learned trial Judge about the entitlement of a respondent to hearing notice of proceedings in an undefended divorce petition which are engendered by the provisions on service of process in both the defended and undefended petitions that clisis-crossed over Order XI of the Matrimonial Causes Rules in a ually inelegant fashion, it cannot be the intention of the law-makers that a respondent who is not contesting a petition is, as a general rule, not entitled to the notice of the proceedings. A divorce action traverses several facets of human interests, e.g. custody and maintenance of children, sharing of property, etc., that are the fallout of divorce to make such a general proposition absurd and impracticable. Besides, such a proposition would run counter to the rule of natural justice as enshrined in section 33 of the Constitution of the Federal Republic of Nigeria, 1979, applicable to the case in hand but re-enacted almost ipsissima verba as section 36 of the 1999 Constitution which is currently in force. For the foregoing reasons, I hold, without disrespect, that the learned trial Judge was in serious error when she held that the respondent was not entitled to be put on notice of the court proceedings because the suit was undefended as taking a dim view of what is implied by an undefended suit which does not mean submission to judgment; afortiori, when the undefendedness of the suit is technical in the sense of filing an answer to the petition out of time rather than a deliberate choice not to defend the petition for some other reasons.
In any case, having established that the respondent was neither put on notice of the decision to set the petition down as an undefended suit nor of the ensuing trial it is clear that she was not given a hearing.
There is, therefore, a breach of the principle of audi alteram partem that posits that in a judicial trial both parties to the dispute must be heard. The consequence of the breach of that rule is well spelt out, by this court in its recent decision in NASCO Management Services Ltd. v. A. N. Amaku Transport Ltd. (2003) 2 NWLR (Pt.804) 290, where the court, per Mangaji, JCA, of blessed memory, expounded at pages 338-339, that:
“Where service of hearing notice is called for any proceedings conducted without due issuance of it is rendered null and void. It is a fundamental vice which easily vitiates proceedings. Where proceedings are conducted when no hearing notice is served on a party who should have been necessarily served the whole proceedings are rendered void no matter how well conducted they were. See Obimonure v. Erinosho (1966) 1 All NLR 250; Skenconsult (Nig.) Ltd. v. Ukey (1981)
1 SC 6 at 26-27; Wema v. Odulaja (2000) 7 NWLR (Pt.663) 1.”
For similar pronouncements, see Ozowala v. Ezeiheshie supra at page 707; Onyekwulunne v. Ndulue supra, at page 259; and Leedo Presidential Motel Ltd. v. Bank of the North Ltd. (1998) 10 NWLR (Pt.570) 353; (1998) 7 SCNJ 328,353-355.
Having demonstrated that the current of judicial authorities is deadly against giving a decision where one of the parties who is entitled to be heard is not put on notice of the proceedings, a lapse which, ipso jure, renders such a decision a nullity. I will also resolve issue One against the petitioner/respondent.
The argument of issue 4 revolves round what may be described as error occasioned by terminological inexactitude in which enumeration by the petitioner of the adulterous acts of the respondent was described by the learned trial Judge on page 38 of the record, as sounding fantastic to her, an account which she, nonetheless, said that she had no reason to doubt its veracity. That opinion, according to learned counsel for the appellant, is equivocal and calls into question whether the ambivalence denoted by epithet of the word ‘fantasy’ can satisfy the standard of proof laid down by sub-section 82(1) of the Matrimonial Causes Act as proof ‘to the reasonable satisfaction of the court’. He contended that in lingual realm the word fantasy relates to fancy or imagination which is the very opposite of reality. Therefore, he submitted, the allegation of adulterous acts by the respondent/appellant could not have been proved to the reasonable satisfaction of the court by the petitioner’s evidence which appeared to the court to be fantastic implying some element of illusion that is bound up with uncertainty.
Short of rhetorical flourish it appears odd that a story which is described as fantastic can induce belief to the degree of reasonable satisfaction laid down by the law as the standard of proof of any allegation in matrimonial causes proceedings. In my view, the misconception about the appraisal of the quality of evidence before the trial court stemmed from the fact that the suit was undefended and conducted under the proceedings which did not afford the learned trial Judge the benefit of cross-examination of the only witness, a device which is designed for probing the credence of a piece of evidence and hence the criterion for testing the veracity of any story by a witness.
Against the background of resolving a contentious issue in a non-contentious setting that has not the advantage of sifting the evidence, it is seldom that a court which is not under any pressure by an adversary can sieve the wheat from the chaff as far as the veracity of the evidence of a witness is concerned. Under the circumstances the tendency not to see the wood for the trees is overwhelming and that probably accounts for failure of the learned trial Judge to be awakened to the logic that ‘fantasy’ is the very anthetesis of ‘reality’ and that a story that is fantastic losses touch with veracity that is the very epitome of truth.
It could very well be that the petitioner is a truthful witness whose demeanour in the witness box attests to that rating and compels belief by the learned trial Judge. But to form the impression that his evidence is fantastic is to put him on the parallel line that is opposite to veracity or truthfulness. In other words, the conclusion by the learned trial Judge that the petitioner is a truthful witness does not flow from the impression formed and expressed by the learned trial Judge that his story as a witness is fantastic which puts him in the slot of a chimerical or an imaginary narrator or a rehearser.
In sum, the bane of the appraisal of the evidence of the lone witness at the trial is lingual inexactitude which portrays an ambivalence between the impression formed by the learned trial Judge of the testimony of the witness and the conclusion reached on the evidence. Such a dichotomy between the impression formed and the conclusion reached on the evidence cannot in law meet the standard of proof laid down by sub-section 82(1) of the Matrimonial Causes Act as proof ‘to the reasonable satisfaction of the court’ which is not satisfied by sheer quibble by a Judge. Again, for these reasons I will also resolve issue 4 against the petitioner/respondent and that concludes examination of all the issues raised by the appellant.
In conclusion, let me note in parenthesis one disquieting aspect of this appeal. The learned trial Judge would have saved this avoidable appeal if she had properly addressed herself to the law for upon the application by the respondent to set aside her judgment given without putting the respondent on notice she could have had a recourse to the precedent of the Supreme Court’s decision in Okafor v. Attorney-General of Anambra State (1991) 6 NWLR (Pt.200) 659, (1991) 7 SCNJ (Pt. 11) 345, 361-362. In that case, the decision of this court which it rendered inadvertently when the appeal had not been argued was set aside by the court on application by one of the parties on the ground that It was a nullity. The competence of this court to set aside its decision, was affirmed by the Supreme Court on appeal against that decision. The Supreme Court held that a court has the inherent jurisdiction to pronounce on the validity vel non of its own act and to set the decision aside where there is a fundamental irregularity in its proceedings which vitiated the proceedings and rendered them a nullity. See also Oyeyipo v. Oyinloye (1987) 1 NWLR (Pt. 50) 356, 366; Olabanji v. Odofin (1996) 3 NWLR (Pt. 435) 126, (1996) SCNJ 241, 247; and Chime v. Ude (1996) 7 NWLR (Pt. 461) 379, (1996) 7 SCNJ 81,89 & 129 – 130.
Be that as it may, in the last analysis, I come to the conclusion that the decision of the trial court is riddled with a wholesale vitiating errors for not only is the petition improperly constituted but it was also set down for hearing as an undefended suit, although erroneously, without satisfying the condition precedent to such placement. Moreover, in a staggered revelry of errors the appellant was neither put on notice of the particular court to which the case was assigned for hearing nor was she notified of the dates of the successive proceedings in which the petitioner’s counsel and the court below were locked in a solo but theatrical contest in a manner reminiscent of the proceedings of the trial courts reviewed by this court in Cooperative and Commerce Bank Plc. v. Masterpiece Chemicals Ltd. (2000) 12 NWLR (Pt.682) 574, 566: and Agbogu v. Adiche (2003) 2 NWLR (Pt.805) 509. The fallacious reasoning in coming to a decision on the evidence which the learned trial Judge described as fantastic but which she still held to have satisfied the standard of proof set by the law is not the last error by which the trial is beset. A glance at pages 32-34 of the record shows that the judgment which at the end of counsel’s address on 30/7/97 was adjourned to 22/10/97 was not delivered until 1/12/97, some 4 months later, with no minutes of any adjournment in between the proceedings of the two dates on record. Thus, in sequence of lapses delivering judgment outside the statutory time limit of 3 months with impunity brings up the rear of errors as a crowning touch of the cycle of travesty. Indeed, the decision of the learned trial Judge is one of a kind.
A judgment punctuated by such flagrant and fatal errors is perverse within the meaning of that expression in Adimora v. Ajufo (1988) 3 NWLR (Pt.80) 1, 16; and Odiba v. Azege (1991) 7 NWLR (Pt. 206) 724, (1998) 7 SCNJ 119, 127, as it paid scanty regard to the law. Such a judgment cannot be allowed to stand.
Because of the incompetence of the petition as resolved in issues 1, 2 and 3 herein the trial court had no jurisdiction to entertain the action in the first place. Therefore, guided by the principles enunciated variously in Adesokan v. Adetunji (1994) 5 NWLR (Pt. 346) 540, (1994) 6 SCNJ (Pt. 1) 123, 144-145; Ejike v. Ifeadi (1998) 8 NWLR (Pt. 561) 323, (1998) 6 SCNJ 87,101; and Ovenseri v. Osagiede (1998) 11 NWLR (Pt. 572) 1, (1998) 7 SCNJ 188, 195, the proper order to make in the circumstances of this appeal is to strike out the petition. Accordingly, the appeal succeeds and it is allowed. I set aside the judgment delivered on 1/12/97 by Nebo, J., of the Enugu, Judicial Division of Enugu State High Court. The respondent’s petition at the trial court ought to have been struck out on the ground of incompetence and it is hereby struck out. I award N5,000.00 costs against the petitioner/respondent.
Appeal Allowed. Petition struck out.
MAHMUD MOHAMMED, J.C.A.: This appeal which is against the judgment of the Enugu State High Court of Justice in a divorce petition delivered by Nebo, J., on 1-12-97, was heard on the appellant’s brief of argument alone because the respondent who was duly served with the appellant’s brief of argument had refused or neglected to file any respondent’s brief of argument up to the date this appeal was heard on 22-1-03. This is in line with the provisions of Order 6 rule 10 of the Court of Appeal Rules in the absence of any application from the respondent, who was also absent at the hearing of the appeal, for leave of this court to be heard otherwise in the absence of the respondent’s brief of argument. See Ovenseri v. Osagiede (1998) 11 NWLR (Pt.572) 1 at 9.
The main complaint of the appellant arising from the first issue for determination in this appeal is the denial of hearing by the court below. It is not at all in dispute from the record of this appeal that the appellant, as the respondent to the divorce petition at the court below, was not put on notice before that petition was heard and determined by that court. It is trite that where service of process is required, failure to serve is a fundamental vice and the person affected by the order or decision but was not served with the process, as clearly happened in the instant case, is entitled ex debito justitiae to have the order or decision set aside as a complete nullity. Such an order of nullity becomes necessary because due service of process is a condition sine qua non to the hearing of any case by a court. See Mbadinuju v. Ezuka (1994) 8 NWLR (Pt. 364) 535 at 566 and Skenconsult (Nigeria) Ltd. v. Ukey (1981) 1 SC 6.
One of the basic requirements of natural justice is that a party should be given an opportunity to state his case without any let or hindrance. See Professor Onwumechili & Anor. v. Miss Akintemi & Ors. (1985) 3 NWLR (Pt. 13) 504. The rule of audi alteram partem postulates that the court must hear both sides at every material stage of the proceedings before handing down a decision. It is not only a rule of fairness but also a fundamental requirement of sec 60n 33(1) of the 1979 Constitution which was then in force when the proceedings in this case were conducted. A court cannot be fair unless it considers both sides of the case as may be presented by the parties.
In other words, a hearing can only be said to be fair when all the parties in the case or dispute are given a hearing or an opportunity of a hearing. If any of the parties is refused or denied a hearing or is not given an opportunity of being heard, such a hearing can not qualify as fair hearing. See Olumesan v. Ogundepo (1996) 2 NWLR (Pt.433) 628 at 644 and Mohammed v. Olawunmi (1990) 2 NWLR (Pt.133) 458. It is also the law that the effect of denial of fair hearing by a court is to render its proceedings including its judgment a nullity.
In the result, as the proceedings leading to the judgment of the court below of 1-12-97 are a nullity for having been conducted without any service of process on the appellant which resulted in denial of fair hearing to the appellant, I entirely agree with my learned brother, Olagunju, JCA in the leading judgment that this appeal must be allowed. Accordingly, I hereby allow the appeal and declare proceedings including the judgment of the lower court now on appeal given in violation of the appellant’s right of fair hearing a nullity.
Consequently, as the respondent’s petition for divorce against the appellant is also not properly constituted and therefore incompetent as properly found in the leading judgment, the same is hereby struck out with N5,000.00 costs to the appellant.
CLARA BATA OGUNBIYI, J.C.A.: The appellant in this appeal was the respondent in a divorce petition taken out by her husband against her whereby he obtained a decree nisi on the 1st December, 1997 only to be made absolute three months thereafter. It is of significance to state that throughout the hearing and proceeding of the court, neither the appellant nor her counsel was in court. The appellant who was served the petition did not get to file her reply on time but same was 21 days out of the seeming official time allowed by law. There was also no leave and opportunity to have filed out of time. Consequently, her case was therefore heard as undefended and following which her marriage was accordingly dissolved.
On the 7th May, 1998 and by a motion on notice the appellant who obviously must have been taken by surprise prayed the court to set aside the Decree nisi made on the 1st December, 1997 on the premise that at no time was a hearing notice ever served on her. Her application was not successful and was refused, hence this appeal.
The main crux of this appeal is whether or not the trial court was right to have heard and disposed of the petition in the absence of the appellant who claimed she was never at any time put on notice. The appellant also challenged the entire trial which she claimed had fallen short of the standard of proof required as well as the laid down procedure for dissolution of marriage as provided for by the Matrimonial Causes Rules, 1983 as well as the Matrimonial Causes Act, 1970. In other words, the appellant put the conduct of the entire proceedings as that which had breached the laid down due process provided for by provisions of the relevant applicable statutes. In other words, the conduct imputes absence of fair hearing, irregularity as well as incompetence and lack of jurisdiction on the lower court’s proceedings. The sustenance of the allegation put forward by the appellant would give rise to vitiating the order made by the court and rendering it devoid of any legal effect but rather amounting to a nullity. The authority of Madukolu v. Nkemdilim (1962) 1 All NLR 587 enumerates the requisite qualifications necessary as pre-conditions needed to be satisfied before a court can exercise effective jurisdiction. Any defect affects the fundamental basis or foundation of the case and thus rendering the proceeding a nullity.
With reference to the provision of Order 11 rule 46(1) of the Matrimonial Causes Rules, it requires that a petitioner or his counsel should have deposited a copy of a form of notice in accordance with Form 33 (notice of trial) for service on the appellant as this requirement was not excepted under sub-rule 2. There was no such compliance by the petitioner especially having regard to page 6 of the record where there was no address for service on the appellant.
The effect of this is a breach of sub-rules 3(b) and 4 of the said rule 46. The failure therefore to deposit a copy of the notice of trial for service on the appellant had evidently also breached sub-rule 5 of Rule 46 because the notice was never served on her. The said sub-rule 5 states as follows:
“Where a registrar sets a suit down for trial he shall:
(a) insert in each copy of the form of notice deposited under sub-rule (1) of this rule the name of the court division at which the suit has been set down for trial, and if he has in accordance with the practice of the court set the proceeding down for trial on a particular day or for a sitting for the Court commencing on a particular day,also insert particulars of that day or sittings (b) post each copy of the notice to the party whose Address appears on it at that address …” (italics is mine.)
It is of paramount significance to re-iterate the contents and expectations of the said provision of sub rule 5 supra wherein the use of the word shall makes it mandatory and incumbent upon the registrar to so comply and insert in each copy of the form the name of the court, division at which the suit has been set down for trial, particular day or sittings of court etc. Each copy of the notice should therefore be posted to the party whose address appears on it at the designated address.
By the provision of the rules, the terms “defended suit” and “undefended suit” are expressly and specifically used, wherever the rule intended to refer specifically to any of then. The learned trial Judge in her ruling dismissed the appellant’s application to act aside her judgment at page 62 lines 10 – 20 and said:
“It follows therefore that the registrar treated the suit as undefended and complied with provisions of Order 11 rules 39 sub-rule (1-8) before setting the suit down for heating.
It could also be seen that there is no provision in the rule that the notice of trial should be served on the respondent since the suit is undefended. This is in contrast with the provisions of Order 11 rules 42 which specifically provided for the service on respondent a request to set a suit down for trial.”
By the provision of Order 11 rule 46 of the Matrimonial Causes Rules notice of trial applies to both defended as well as undefended suits in general terms referred to as suit. The procedure for petition unlike ordinary writ of summons do not bear the court and date of hearing which by the rules are fixed subsequently by the registrar only on the application of the petitioner’s counsel.
Furthermore, in her ruling, the court emphasised the failure of the appellant to have made effort in locating the court handling her case. It is obvious that whether or not she made the effort, that would not have constituted a notice of trial envisaged by the provision of Order 11 rule 46 of the Matrimonial Causes Rules. As rightly submitted by the appellant’s counsel, in my humble view, the conduct of the proceedings by the lower court is that which gives an outlook impression of a mixed up of notice of trial with request to set a suit down for trial. Neither the appropriate court assigned the petition nor the date of hearing was communicated to the appellant, she could not therefore have been in a position to have taken advantage of Order 10 rule 1 sub-rules (1) and (2) by applying to the court for an extension of time to file her answer to the petition as contemplated by the learned trial Judge by her ruling at page 62 lines 21-27 .
From all indications of the nature and revelation on this appeal, it is overwhelmingly evident that the respondent who is now the appellant was never put on notice of the hearing of the petition as required by law. The effect of this is that which rendered the proceedings null and void on the strength of the authority of Ozowala v. Ezeiheshie (1991) 1 NWLR (Pt.170) p. 707 where this court held inter alia that the appeal should succeed on the ground that the proceedings were conducted without notice having been given to the defendant and judgment was entered against him without hearing him. Further related authorities in support of the proposition are Food Commodities Ltd. v. Aremu (1990) 2 NWLR (Pt.134) 554 at pp.561-564; also Osimonre v. Ojumoola & Anor. (1966) 1 All NLR p. 150, as well as the case of Lawrence Scott Emuakpor v. J.I. Ukavbe (1975) 12 SC p 4l at 47.
Such defects in the trial were fundamental and therefore rendered the proceedings void and a nullity because the Court had no jurisdiction to entertain the suit. Failure to send notice of trial to the appellant was not only a flagrant violation of section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999, but also amount to a breach of the principle of natural justice – audi alteram partem. The defect which touches on the fundamental foundation of the case.
The other issues are those which also challenge the jurisdiction of the court where there is the want of fulfillment of conditions precedent before due exercise of jurisdiction. In other words in a divorce proceedings, and where there are named and unnamed adulterers alike the law required that the former ought to have been joined as parties to the petition while dispensation of naming the latter must be as a result of a court order duly obtained. This disposition is a necessary prerogative before setting down the petition for trial. These are as provided for by the provisions of S. 32(1) of the Matrimonial Causes Act, 1970 and Order 9 rule 3 of the Matrimonial Causes Rules, 1963 respectively. There is obviously a failure of compliance with the said provisions because of the allegation of adultery having been committed by the respondent with both named and unnamed persons on the record, with no evidence of fulfillments made of the conditions precedent. The effect of such failure therefore was to put the jurisdiction of the court into question.
On the totality of the appeal before us, I completely agree with the conclusion reached by my learned brother, Olagunju, JCA in the lead judgment and also allow this appeal, I also set aside the judgment delivered on the 1/12/97 by Nebo, J., of the Enugu, Judicial Division of Enugu State High Court. The petition is also struck out and I abide by the order as to costs.
Appeal allowed.
Appearances
Dr. C.C. OguaghaFor Appellant
AND
Respondent unrepresentedFor Respondent
