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ENALUKHE v. ENALUKHE (2022)

ENALUKHE v. ENALUKHE

(2022)LCN/16479(CA)

In The Court Of Appeal

(BENIN JUDICIAL DIVISION)

On Monday, June 06, 2022

CA/B/76/2018

Before Our Lordships:

Uchechukwu Onyemenam Justice of the Court of Appeal

James Gambo Abundaga Justice of the Court of Appeal

Ademola Samuel Bola Justice of the Court of Appeal

Between

MRS. ESTHER OMOZEE ENALUKHE APPELANT(S)

And

MR. GODFREY ENALUKHE RESPONDENT(S)

 

RATIO:

JURISDICTION IS THE FOUNDATION OF EVERY CAUSE OR MATTER BEFORE A COURT OF LAW

Jurisdiction is the lifeblood of any adjudication. It is the foundation of every cause or matter before a Court of law. It is a matter of strict law donated by the Constitution and statutes. Jurisdiction can also be described as the authority of a Court to entertain a matter brought before it. See Shitta-Bey V. A.G. Federation & Anor (1998) 10 NWLR (Pt. 570) 392, Aribisala Anor V. Ogunyemi & Ors (2005) 6 NWLR (Pt 921) 212, Utih V. Onoyivwe & Ors. (1991) 1 NWLR (Pt. 166) 166, Umanah V. Attah (2006) 17 NWLR (Pt. 1009) 503,ALL PROGRESSIVES CONGRESS & ORS V. ENUGU STATE INDEPENDENT ELECTORAL COMMISSION & ORS (2021) LPELR-55337(SC), OLAYORI MUYIDEEN, ESQ. V. NIGERIAN BAR ASSOCIATION & ANOR (2021) LPELR-55885(SC), MAMMAN WAZIRI V. LEGAL PRACTITIONERS DISCIPLINARY COMMITTEE& ANOR (2021) LPELR-55595(SC). UCHECHUKWU ONYEMENAM, J.C.A.

THE EFFECT OF NON SERVICE OF AN ORIGINATING PROCESS TO A PARTY

The effect of non-service or improper service of originating process was stated by the Apex Court in HARRY V. MENAKAYA (2017) LPELR-42363 (SC) thus:
“The law is trite and well settled on the fact that service of the originating process or hearing notice constitutes the foundation, on which the whole structure of litigation or appeal is built, and in its absence, the entire proceeding will be rendered void and any decision reached thereon is a nullity. Therefore, the issue of service of aninitiating process, be it a Writ of Summons, an Originating Summons, a Notice of Appeal or a Notice of Petition, whether in election matters or in winding-up proceedings et cetera, is so central, fundamental and very germane to the proceedings springing or emanating from such processes. Service is the very pillar or foundation upon which any proceeding is built, before any Court no matter its status… Apart from the fact that it is a fundamental human right of a party, extracted from his right to fair hearing as entrenched under Section 36 of the Constitution to have an initiating process or hearing notice in respect of any Proceedings served on him, such service or non-service, as the case may goes to the root of the jurisdiction of the adjudicating Court.”
See also PRINCE DEJI ADEKOYA V. DR. AMBROSE ATTAH (2022) LPELR-57223(CA) UCHECHUKWU ONYEMENAM, J.C.A.

NON –SERVICE OF AN ORIGINATING PROCESS ON A PARTY ENTITLED TO SUCH SERVICE RENDERS THE PROCEEDINGS A NULLITY

It is settled law that non-service of the originating process on a party entitled to such service renders the entire proceedings, no matter how well conducted a nullity. The appellant being a respondent in the petition is a party adversely affected by the reliefs sought in the petition; and indeed the party against whom the judgment on appeal was given. Therefore having not been served the petition, (the originating process), all that happened at the lower Court up to judgment was an exercise in futility. In other words, it was an utter nullity. It is for this reason in the main, that I allow this appeal and consequently set aside the judgment of the lower Court delivered on 14th December, 2017. JAMES GAMBO ABUNDAGA, J.C.A.

UCHECHUKWU ONYEMENAM, J.C.A. (Delivering the Leading Judgment): This appeal is against the ruling of the High Court of Justice, Edo State, Benin Division delivered on 14th December, 2017 in Suit No: B/641D/2016 by H. A. Courage-Ogbebor J.

This is Matrimonial Causes wherein the Appellant was the Respondent while the Respondent was the Petitioner at the trial Court. The Respondent (Petitioner) petitioned the Appellant (Respondent) on the grounds that:
a) “The Respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the Respondent.
b) The Respondent has deserted the Petitioner for a continuous period of at least 2 years immediately preceding the presentation of this petition.
c) The marriage has broken down irretrievably.”

The Respondent at the trial Court sought for the following Orders:
i. “A Decree of the dissolution of the marriage celebrated between the petitioner and the Respondent at the Marriage Registry, Benin City on the 15th day of October, 2011 on the grounds and facts stated in this petition but more particularly on the ground that the marriage has broken down irretrievably as Petitioner and the Respondent had lived apart for more than 2years.
ii. That the marriage has broken down irretrievably as all effort at reconciliation failed.”

On the 20th March, 2017, the Appellant filed a motion on notice and prayed for the following reliefs:
1) “AN ORDER setting aside the proceedings of 10th February, 2017.
2) AN ORDER setting aside the purported service of the petition and the request to set down the petition for trial.
3) AN ORDER striking out the petition for dissolution of marriage for want of jurisdiction.”
The application was brought on the grounds that:
1. “The Respondent was not served the petition for dissolution of marriage.
2. The Respondent was not served the request to set the suit down for hearing as required by the law.”

The trial Court however after taking the application, dismissed same and ruled as follows:
“The fact that the request to set the petition down for trial was not served on the Respondent has not occasioned miscarriage of justice, as long as the Respondent was served with a hearing notice before the hearing commenced. The learned counsel for the Respondent has argued that the hearing notice issued by Court ought to be a notice of trial as in Form 33 in accordance with the Matrimonial Causes Rules.
I do not agree with the submission of the learned counsel as the essence of the Form 33 i.e. the notice of trial is to give notice of the trial to the Respondent which the hearing notice also did.”

The Appellant being unsatisfied with the ruling of the trial Court above, initiated this appeal via a Notice of appeal filed on 21th December, 2017. Counsel on both sides filed their relevant processes as required by the rules of the Court and the Appeal was heard on 9th March, 2022. As the appeal was ripe for hearing Peter Imhanguezogie Esq., who appeared for the Appellant, adopted and relied on the Appellant’s brief of argument filed on 13th April, 2018; in urging the Court to allow the appeal. The Respondent was represented by Ebosele Okhifoh Esq., who adopted and relied on the Respondent’s brief of argument filed on 6th July, 2018; in urging the Court to dismiss the Appeal.

Imhanguezogie Doyin Peter Esq., in the Appellant’s brief of argument submitted 3 issues for determination as follows:
1. Whether the condition precedent for the lower Court to assume jurisdiction was met.
2. Whether the purported service by post of the Petition for Dissolution of Marriage by DHL “pick up’ by Vivien is service on the Appellant.
3. Whether the hearing of the petition for the dissolution of marriage in the absence of service of Request to set suit down for trial does not occasioned a miscarriage of justice.

On the other hand, Ebosele Okhifoh Esq., in the Respondent’s brief of argument identified 5 issues for determination thus:
1) Whether non-availability of a marriage certificate in a divorce petition is sacrosanct and capable of nullifying the petition particularly where same had already being tendered as an Exhibit in the proceeding.
2) Whether having been satisfied as evidenced by the records of Court that the Appellant was properly served with both the Notice of Petition and Hearing Notice setting down the suit for hearing, whether the Court ‘was not right to assume jurisdiction.
3) Whether the service of the Hearing Notice setting down the suit for hearing on the Appellant is not sufficient Notice.
4) Whether there is any miscarriage of justice on the Appellant when she is fully represented by Counsel and the Respondent/Petitioner is still in the witness box and yet to close his case.
OR IN THE ALTERNATIVE
5. Whether the learned trial Judge was not right when she held that the overall aim of the Court is to ensure that substantial and practical justice is done in cases presented by parties devoid of technicalities that relate to only form and not to substance of the case.

Having regards to the 3 issues for determination submitted by the Appellant, and the 5 issues presented by the Respondent, I view the Appellant’s issues adequate in the determination of this appeal vis a vis the Grounds of Appeal. However, I chose to resolve issues 2 and 3 together, as they are interwoven.

SUBMISSIONS ON ISSUE 1
Whether the condition precedent for the lower Court to assume jurisdiction was met.

Mr. Imhanguezogie in the Appellant’s brief of argument on this issue argued that failure to file the petition for the dissolution of marriage along with the marriage certificate robs the Court of its jurisdiction to hear and determine the matter.

The learned counsel for the Respondent in response to this issue submitted that there is nowhere in the Matrimonial Causes Rules wherein it is expressly stated that non-compliance with the rules render a cause incompetent. He relied on Order XXI Rules (1)- 3 (a-b) of the Marriage Rules and the cases of ODOM V. PDP (2015) ALL FWLR (PT. 773) AT 1962 AT 1966-1968 R. 6, MOTOH V MOTOH (2011) ALL FWLR (PT 584) AT 73 AT 80 R. 7 Pp 113 -114, ANYAEGBUNAM V. ANYAEGBUNAM (1973) 1 ALL NLR (PT.1) AT 385 in support of his submission.

RESOLUTION OF ISSUE 1
Jurisdiction is the lifeblood of any adjudication. It is the foundation of every cause or matter before a Court of law. It is a matter of strict law donated by the Constitution and statutes. Jurisdiction can also be described as the authority of a Court to entertain a matter brought before it. See Shitta-Bey V. A.G. Federation & Anor (1998) 10 NWLR (Pt. 570) 392, Aribisala Anor V. Ogunyemi & Ors (2005) 6 NWLR (Pt 921) 212, Utih V. Onoyivwe & Ors. (1991) 1 NWLR (Pt. 166) 166, Umanah V. Attah (2006) 17 NWLR (Pt. 1009) 503,ALL PROGRESSIVES CONGRESS & ORS V. ENUGU STATE INDEPENDENT ELECTORAL COMMISSION & ORS (2021) LPELR-55337(SC), OLAYORI MUYIDEEN, ESQ. V. NIGERIAN BAR ASSOCIATION & ANOR (2021) LPELR-55885(SC), MAMMAN WAZIRI V. LEGAL PRACTITIONERS DISCIPLINARY COMMITTEE& ANOR (2021) LPELR-55595(SC).

The Appellant on this issue argued that failure to file the petition for the dissolution of marriage along with the marriage certificate robs the Court of its jurisdiction to entertain the matter. Indeed, the law is long settled that where the Court lacks jurisdiction to entertain a cause or matter, any step taken in the proceedings amounts to an exercise in futility. It is null and void. See Madukolu V. Nkemdilim (1962) 1 ALL NLR 387 AT 594, Utih V. Onoyivwe (supra), IDISI V. Ecodril Nig. Ltd. &Ors (2016) ALL FWLR (Pt. 850) 1016, Gwede V. INEC & Ors. (2014) 18 NWLR (Pt. 1438) 56.

Order V Rule 27 of the Matrimonial Causes Rules provides for the filing of Petitions and Notices of Petitions as follows:
27- (1) Subject to the Sub-rule 2 of this Rule at the time when a petition for a decree of-
(a) Dissolution of marriage;
(b) Nullity of marriage;

(c) Judicial separation; or
(d) Restitution of conjugal rights,
Is filed, the petitioner shall, unless he is unable to do so also file a marriage certificate in respect of the marriage to which the petition relates.
2. This rule does not apply in relation to a petition instituting proceedings in pursuance of leave granted under Section 30 of the Act.
3. Subject to Sub-rule (5) of this Rule, if the marriage certificate filed in accordance with Sub-rule(1) of this Rule is not written in the English language, a translation, in the English language, of the marriage certificate – shall also be filed at the same time.
4. A translation of a marriage certificate filed under Sub-rule (3) of this Rule shall be verified as a translation by the person who made the translation by an affidavit in which he also states that he is competent to make translation of the marriage certificate.
(5) Where –
(a) A petitioner and respondent were married in a country the public records which are not kept in English language; and
(b) the marriage certificate relating to the marriage that is filed in accordance with Sub-rule (1) of this Rule was issued in that country in two or more languages, including the English language.
Notwithstanding Sub-rules (3) and (4) of this Rule, it is not necessary to file a translation in the English language of the marriage certificate or an affidavit verifying the version in the English language of the marriage certificate so filed.
(6) Where a petitioner is unable, for any reason to comply with Sub-rule (1) of this Rule, the petitioner shall state in the affidavit verifying the petition the circumstances by reason of which he is unable so to comply.
(7) In this rule, “marriage certificate”, in relation to a marriage, whether solemnized in Nigeria or elsewhere, means-
(a) An original certificate or record of the marriage; or
(b) a copy or photographic representation of an original certificate or of an entry of the marriage in an official register of marriages, being a true copy or representation certified as a true copy or photographic representation by 2 person having the custody of the certificate or record, of the register containing the entry, of which it purports to be a true copy or photographic representation. In this appeal, the Appellant is not challenging the existence nor the validity of the statutory marriage of the parties under the Act. Rather, she challenges the competence of the petition to confer jurisdiction on the trial Court to hear it on the ground that the petition was filed without the marriage certificate. I agree with the Appellant that Order V Rule 27 of the Matrimonial Causes Rules; provides that a petition as in the instant case should be filed with a marriage certificate. The Rules also in Sub-paragraph (6) provides that a petitioner who is unable to file the marriage certificate shall state in the affidavit verifying the petition the circumstances by reason of which he is unable to comply. Again, no reason was stated in the verifying affidavit of the Respondent in support of the herein petition. See pages 6 and 7 of the record of appeal. Howbeit, Order V Rule 27 (supra) did not legislate the consequence(s) of failure to file a marriage certificate along with a petition or failure to state reasons for not filing a marriage certificate along. Accordingly, the effect of failure to file a marriage certificate along with a petition or to statereasons for such failure can only be deciphered from the purpose for the requirement of filing a marriage certificate in a proceeding for dissolution of marriage as in the instant case.
There is no gainsaying that a marriage certificate is a prima facie evidence that a marriage was legally conducted under the Act. Therefore the purpose of filing a marriage certificate with a petition is to raise the presumption that the parties are properly and legally married under the Act.

It is on record and without dispute that the marriage certificate was tendered in evidence during proceedings. I therefore view that in that circumstance; the mere fact that the Respondent failed to file (front load) the marriage certificate with the petition or state in the verifying affidavit reason for not filing the said marriage certificate cannot vitiate the proceedings more so, as the same did not in any way lead to a miscarriage of justice. I therefore hold that the trial Court was without fault to have assumed jurisdiction to hear the petition.

This issue is resolved in favour of the Respondent and against the Appellant.

SUBMISSIONS ON ISSUE 2
Whether the purported service by post of the Petition for Dissolution of Marriage by DHL “pick up’ by Vivien is service on the Appellant.

The learned counsel for the Appellant contended that what is on record as acknowledgement of service is the DHL Receipt: where it was stated that the petition was ‘pick up’ by VIVIEN who is not the Appellant but a staff of DHL. He submitted that it is on Record that the petition was not posted with a Form in accordance with Form 11 and there was no return of form 11 therefore there was no proof of service of the petition. He added that what the lower Court relied on as proof of service was the Shipment Waybill dated 22nd December, 2016 issued by DHL and that the Shipment Waybill relied upon by the lower Court at best only shows evidence of shipment not delivery.

The learned counsel for the Appellant submitted that the Matrimonial Causes Rules is clear on how service of petition for dissolution of marriage is to be effected. He continued by saying that there was no ambiguity in the provision of Matrimonial Causes Rules regarding service and therefore the trial Court erred in law when it relied on Interpretation Act instead.

Mr. Okhifoh for the Respondent argued that the Bailiff of Court, one Mr. OSADOLOR OSAZEME THEOPHILUS stated that the said VIVIEN is a staff of DHL who he handed over the processes for onward posting to the Appellant in London. He added that the Appellant never filed any Further and Better affidavit to discredit the depositions of the Respondent as required by law hence the facts are deemed admitted.

The learned counsel submitted that having not controverted the depositions on the real identity of the said VIVIEN, the Appellant is estopped from making an issue out of who picked up the Court processes in London. He relied on the case of DUGHUM V. ANDZENGE (2007) ALL FWLR (PT 385) AT 499 AT 504r9. It was further submitted that assuming (but not conceded) that the Notice of petition was not posted with a form in accordance with form 11, it is just a mere irregularity and amounts to technical justice to expect the learned trial Judge to nullify an action simply because of this without more.

SUBMISSIONS ON ISSUE 3
Whether the hearing of the petition for the dissolution of marriage in the absence of service of Request to set suit down for trial does not occasioned a miscarriage of justice.

The learned Appellant’s counsel contended that the hearing of the petition for dissolution of marriage on 10th February, 2017 without the service of request to set down the suit for trial and Notice of trial on the Appellant as contemplated by Order XI Rules 39 and 46 is an exercise in futility as the condition precedent for hearing the petition was not complied with. He added that the non-service of the Petition for dissolution and the Request to set down the suit for trial occasioned a miscarriage of Justice.

He urged the Court to allow the appeal and set aside the ruling of the trial Court.

The learned Respondent’s counsel submitted that the service of the hearing notice setting down the suit for hearing constitute sufficient Notice to the Appellant. He argued that the presumption by post is activated when the document is actually shown to have been posted as same is presumed to have been received. He relied on the BENIN ELECTRICITY DISTRIBUTION COMPANY PLC V. ESEALUKA (2013) LPELR 2015 9 (CA) see page 54J of the supplementary record of appeal.

The learned Respondent’s counsel contended that it is on record that the Counsel to the Appellant (Respondent at the lower Court) filed an answer under protest which shows clearly that the Appellant was aware of the petition. He cited the cases of UBA PLC VS EFFIONG (2012) ALL FWLR (PT 634) AT 172 AT 189. He went further to submit that there has not been any miscarriage of justice and urged the Court to resolve this issue in favour of the Respondent and dismiss the appeal.

RESOLUTION OF ISSUES 2 AND 3
Order VI Rule 9 provides for Service of Petitions and Answer as follows:
Petition to be effected on
(a) Each other party to any proceedings instituted by the petition; and
(b) Any person specified in the petition as a person on or with whom the Respondent is alleged to have committed rape or sodomy.
(2) Where proceedings for a decree of dissolution of marriage on the ground specified in Paragraph (h) of Section 15 (2) of the Act and on no other ground are instituted by a petition, the last preceding sub-rule does not require service of the petition to be effected on any person.
(3) Service of a petition shall be effected on a person-
(a) By serving on the person in the manner referred to in paragraph (a) of Rule 1 of this Order –
(i) A sealed copy of the petition; and
(ii) If the person served is the respondent, a notice of petition or, if the person served is not the respondent, a notice of proceedings; or
(b) By serving on the person in the manner referred to in paragraph b of Rule 1 of this Order.
(i) A sealed copy of the petition;
(ii) If the person served is the respondent, a notice of petition or, if the person served is not the respondent, a notice of proceedings;
(iii) A form, in accordance with Form 11, for acknowledging service of the petition; and
iv) An envelope, being, in the case of service effected in Nigeria, a stamped envelope, having written on it the name of the petitioner or his legal practitioner and the address for service of the petitioner.
The main grouse of the Appellant on this issue is that she was not served with the petition for the dissolution of marriage, on the ground that the proof of service showed that the petition was sent by a Court bailiff and received by one Vivian who happen to be a staff of D. H. L and not the Appellant. Order VI Rule 3 of the Matrimonial Causes Rules provides for service by post as follows:
1. Where service of a document is required by these Rules to be effected on a person, service may, subject to the provisions of these Rules that limit the method of service of particular classes of document, be effected, either in or outside Nigeria –
(a) By delivering the document to the person personally;
(b) By serving the document on the person by post in accordance with Rule 3 of this Order;
(c) If the person has an address for service for the purpose of the proceedings by delivering the document at that address or by posting the document (under prepaid postage) as a letter to the person, or his legal practitioner, as the case may be, at that address; or
(d) By delivering the document at, or by properly addressing and posting (under prepaid postage) the document as a letter to the person at, the last address of the person known to the person on whose behalf the document is being served.
3 (1) for the purpose of paragraph (b) of the Rule 1 of this Order, service of a document on a person shall be effected by properly addressing and posting (under prepaid postage) the document, together with-
(a) A form in accordance with Form 11 for acknowledgment service of the document; and
(b) An envelope, being in the case of service effected in Nigeria, a stamped envelope, having written on it the name of the person on whose behalf the document is being served, or the name of his legal practitioner, and the address for service of that person,
As a letter, to the person at the last address of the person known to the person on whose behalf the document is being served.
(2) Subject to the Sub-rule (3) of this Rule, where a document has been posted to a person in accordance with the provisions of preceding Sub-rule (1) of this Rule, service of the document on the person shall be deemed not to have been effected unless the person signs and returns to the person on whose behalf the document is being served or to his legal practitioner an acknowledgement of the service in accordance with Form 11.
(3) Where a document instituting proceedings has been posted to a person in accordance with the provisions of Sub-rule (1) of this Rule, service of the document shall be deemed to have been duly effected on the person if, after the time when the document would in the ordinary course of post have been received by the person, the person files a document giving an address for – service for the purpose of the proceedings.
4. Where service of 2 documents is effected on a person in accordance with Paragraph (c) or (d) of Rule 1 of this Order by posting the document to the person or his legal practitioner, service of the unless the contrary is proved, be deemed to have been effected on the person at the time when the letter containing the document would, in the ordinary course of post, be delivered at the address to which it is posted. (underlined is mine for emphasis).
The Matrimonial Causes Rules no doubt allow service by posting which includes D.H.L being a courier service and recognizes the same as proper service. See: Order VI Rule 3 (1) of the Matrimonial Causes Rules (supra)

The Respondent on 15th December, 2016 filed a motion ex-parte for substituted service to effect service of the Petition and other accompanying documents by post through any of the courier services on the Appellant in her house at 28, Thirsk road, South Norwood London Se25 6q9. The learned trial Judge in its judgment as seen at page 549 of the supplementary record of appeal, confirmed the grant of the said application on 19th December 2016 as follows:
“Leave is also granted the petitioner to serve the petition and all other processes on the Respondent by substituted means that is by posting same by Courier service of D.H.L and shall be proper service…”

The posting is evidenced by the shipping details Waybill No. 3715936011 from Osadolor Osazeme Theophilus assistant chief bailiff attached to Court 10 to Mrs. Esther Omozee Akhigbe, 28 Thirsk road South Norwood SE25 6Q9 SE 25 London United Kingdom. See: pages 54A; and 54B of the record of appeal. Again at page 54E of the supplementary record of appeal is another waybill with waybill No. 6778872343 from Osadolor Osazeme Theophilus assistant chief bailiff attached to Court 10 to Mrs. Esther Omozee Akhigbe, 28 Thirsk road South Norwood SE25 6Q9 SE 25 London United Kingdom. In prove of service of the petition on the Respondent, the referred assistant chief bailiff deposed to an affidavit of service on 20th March, 2017 as seen at page 54C of the additional record of appeal. From the proof of service on record, Motion on Notice/Affidavits/Written address were served on the Petitioner’s counsel. Again at page 54D is another proof of service sent to the Appellant in respect of Hearing Notice issued on 13th February, 2017. However, there is no proof of service of the Petition on the Appellant in the record of appeal.

Order VI Rule 3 (1) (a) of the Matrimonial Causes Rules provides for service for the purpose of paragraph (b) of the Rule 1 of the Order, to the effect that service of a document on a person shall be effected by properly addressing and posting (under prepaid postage) the document, together with a form in accordance with Form 11 for acknowledgment of service of the document. For greater emphasis, the Court bailiff did not depose to service of the petition on the Respondent as no such account is contained in the record of appeal. Even where there is an affidavit of service of the petition; service on the Respondent having been allegedly done by posting via DHL; there is nothing in any of the bailiff’s depositions that he posted the petition together with a form in accordance with Form 11 for acknowledgment of service of the petition, neither did he depose to a prepaid postage of the Form 11 for acknowledgment of service of the petition. Therefore, although the Apex Court had held severally that the only mode of challenge of an affidavit of service filed by a Court bailiff is by a counter-affidavit; where as in this case there is nothing to counter as there is no evidence of prove of service of the petition together with a form in accordance with Form 11 for acknowledgment of its service, nor a prepaid postage; the Respondent was not obliged in law to file a counter to the Court bailiff’s affidavit of service. This view is firmed by Order VI Rule 3 (2) of the Matrimonial Causes Rules which provides that where a document has been posted to a person in accordance with the provisions of Order VI Rule 3 (1) (supra), service of the document on the person shall be deemed not to have been effected unless the person signs and returns to the person on whose behalf the document is being served or to his legal practitioner an acknowledgement of the service in accordance with Form 11. For clarity, let me note that the affidavit of service did not indicate service of petition, nor service of petition with acknowledgement of the service in accordance with Form 11; let alone return of acknowledgement of service in accordance with Form 11. From all I have laboured to say above, I hold that there was no service of the petition on the Respondent let alone proper service of the same.
Let me state here that just like a Writ of Summons in a civil suit, Petition for dissolution of marriage is also an originating process, whose service is mandatory and activates the jurisdiction of the Court. It is well settled beyond any equivocation, that the service of an originating process on a named party, who ought to be served, is an indispensable aspect of any adjudication. It goes to the root of the Court’s competence and jurisdiction to entertain the suit. Service of an originating process accords with the guaranteed right to fair hearing as provided for in Section 36 (1) of the Constitution of the Federal Republic of Nigeria, 1999, as amended. It notifies the party of the institution of an action against him and affords him the opportunity, if he so desires, to defend the claim. Failure to serve an originatingprocess renders the entire proceedings a nullity. See Kida V. Ogunmola (2006) 13 NWLR (Pt. 997) 377,Obimonure V. Erinosho (1966) 1 ALL NLR 250, Skenconsult V. Ukey (1981) 1 SC 6 AT 26, Mgbenwelu V. Olumba (2016) LPELR-42811 (SC) AT 36-37 E –D, MICHAEL K. AONDOAKAA, SAN V. EMMANUEL BASSEY OBOT & ANOR (2021) LPELR-56605(SC) and DR. HARRY V. O.C. MENAKAYA (2017) LPELR-42363(SC).
From the records of appeal particularly at page 22, the Appellant filed her Answer to the Petition under protest. The Appellant at page 27 of the record of appeal in her affidavit in support of motion to set aside the proceedings of 10th February, 2017 deposed in paragraph 2 thus:
“The news about the divorce petition filtered through to me as rumors when the petitioner was bragging about his impending marriage to another woman who has given birth to a set of twin for him.”
The Appellant denied service of the Petition for dissolution of marriage. Also from the record of appeal, there is no proof of service of the Petition on the Appellant neither was an acknowledgment of service as in Form 11 returned as required by Order VI Rule 3(2) (supra).

The evidence before the Court is that one Vivien who the Respondent identified as a staff of DHL in Benin City received the petition from the Court bailiff for service on the Appellant for posting to her address in London, United Kingdom. There is nothing more that was evidenced. I hold that in the absence of Form 11 which would have evidenced endorsement of receipt of service of the Petition on the Appellant, as provided for by the Matrimonial Causes Rules and failure of the Court bailiff to file affidavit of service of the Petition on the Appellant; the purported service of the Petition for the dissolution of marriage on the Appellant through D.H.L, is a mirage.
The effect of non-service or improper service of originating process was stated by the Apex Court in HARRY V. MENAKAYA (2017) LPELR-42363 (SC) thus:
“The law is trite and well settled on the fact that service of the originating process or hearing notice constitutes the foundation, on which the whole structure of litigation or appeal is built, and in its absence, the entire proceeding will be rendered void and any decision reached thereon is a nullity. Therefore, the issue of service of an initiating process, be it a Writ of Summons, an Originating Summons, a Notice of Appeal or a Notice of Petition, whether in election matters or in winding-up proceedings et cetera, is so central, fundamental and very germane to the proceedings springing or emanating from such processes. Service is the very pillar or foundation upon which any proceeding is built, before any Court no matter its status… Apart from the fact that it is a fundamental human right of a party, extracted from his right to fair hearing as entrenched under Section 36 of the Constitution to have an initiating process or hearing notice in respect of any Proceedings served on him, such service or non-service, as the case may goes to the root of the jurisdiction of the adjudicating Court.”
See also PRINCE DEJI ADEKOYA V. DR. AMBROSE ATTAH (2022) LPELR-57223(CA).
Service of originating processes notifies the party of the institution of an action against him and affords him the opportunity, if he so desires, to defend the claim. Failure to serve an originating process renders the entire proceedings a nullity. It is an irregularity that cannot be regularized.See Kida V. Ogunmola(2006) 13 NWLR (Pt. 997) 377, Obimonure V. Erinosho (1966) 1 ALL NLR 250; Skenconsult V. Ukey (1981) 1 SC 6 AT 26, Mgbenwelu V. Olumba (2016) LPELR-42811 (SC) AT 36-37 E –D, CHIEF PETER OJEME & ORS V. STANBIC IBTC BANK PLC (2022) LPELR-57118(CA), MICHAEL K. AONDOAKAA, SAN V. EMMANUEL BASSEY OBOT & ANOR (2021) LPELR-56605(SC).
By the above settled position of the law, it is my firm view that failure of the Respondent to effect service of the petition being an Originating process on the Appellant in this suit renders the entire proceedings a nullity as the same cannot be regularized. I hold that the proceedings of the trial Court conducted without service of the petition on the Appellant is a nullity.

Having nullified the entire proceedings of the trial Court in the instant suit subject of this appeal, the issue of whether the hearing of the petition for the dissolution of marriage in the absence of service of Request to set the suit down for trial does not occasioned a miscarriage of justice has become academic. It is to be noted that under our adversarial legal system, one of the most firmly ingrained principles of law is thatthe Courts do not exercise their jurisdiction in vain. Thus, where a party presents to the Court a moot point or point which if resolved in its favour will be of no practical utilitarian value as the situation at hand; the Court will not dissipate judicial energy to resolve the issue. As to when an issue, appeal or suit constitutes an academic exercise, the Supreme Court in Dahiru and Anor V. APC &Ors (2016) LPELR-42089 (SC) at page 25 held as follows:
“A suit is academic where it is thereby theoretical, makes empty sound and of no practical utilitarian value to the Plaintiffs even if judgment is given in his favour. A suit is academic if it is not related to practical situation of human nature… Once a suit no longer has live issue for determination such a suit can be said to be academic. Courts should on no account in such an instance spend judicial time… in academic exercise. Courts are to determine only live issues.”
Similarly, in Odedo v. INEC (2008) 17 NWLR (Pt.1117) 554, (2008) LPELR-2204(SC) Per Niki Tobi, JSC at P. 36, the Supreme Court held thus:
“I now go to the merits of the appeal and that takes me to what is an academicmatter. In Plateau State v. Attorney General of the Federation (2006) 3 NWLR (Pt.967) 346, I said at page 419: “A suit is academic where it is merely theoretical, makes empty sound, and of no practical utilitarian value to the plaintiff even if judgment is given in his favour. A suit is academic if it is not related to practical situation of human nature and humanity”. An academic issue or question is one which does not require answer or adjudication by a Court of law because it is not necessary to the case on hand. An academic issue or question could be a hypothetical or moot question. An academic issue or question does not relate to the live issues in the litigation because it is spent as it will not inure any right or benefit on the successful party.”
See also Ardo V. INEC &Ors (2017) LPELR-41919 (SC), ADALMA TANKERS BUNKERING SERVICES LIMITED & ANOR V. CENTRAL BANK OF NIGERIA & ORS (2022) LPELR-57036(SC), MRS. STELLA OKOTERE & ORS V. HON. SULEIMAN ALHASSAN GWAGWA & ORS (2022) LPELR-57535(SC), DELE MOSES & ANOR V. HON. VICTOR GIADOM & ORS (2021) LPELR-55887(SC), EYITAYO OLAYINKA JEGEDE & ANOR V. INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS (2021) LPELR-55481(SC).

Consequently, I find merit in this appeal which has substantially succeeded and the same is hereby allowed to the extent of its success. I set aside the ruling of the High Court of Justice, Edo State, Benin Division delivered on 14th December, 2017 in Suit No: B/641D/2016 by H. A. Courage-Ogbebor J.

I make no order as to costs.

JAMES GAMBO ABUNDAGA, J.C.A.: I have been privileged to read the draft of the judgment delivered by my learned brother, UchechukwuOnyemenam, JCA. I agree that this appeal is liable to be allowed on the basis of the want of service of the petition on the appellant.

It is settled law that non-service of the originating process on a party entitled to such service renders the entire proceedings, no matter how well conducted a nullity. The appellant being a respondent in the petition is a party adversely affected by the reliefs sought in the petition; and indeed the party against whom the judgment on appeal was given. Therefore having not been served the petition, (the originating process), all that happened at the lower Court up to judgment was an exercise infutility. In other words, it was an utter nullity. It is for this reason in the main, that I allow this appeal and consequently set aside the judgment of the lower Court delivered on 14th December, 2017.

ADEMOLA SAMUEL BOLA, J.C.A.: I have considered the judgment read by my learned brother, UCHECHUKWU ONYEMENAM, JCA which he afforded me in draft. The reasoning and conclusion contained therein are acceptable to me. I adopt them as mine.

Consequently, I hold that this appeal has merit. It is allowed. By reason of this, the ruling of the High Court of Justice, Edo State, Benin Division delivered on 14th December, 2017 in Suit No. B/641D/2019 by Hon. Justice Courage-Ogbebor J., is upheld.

I make no order as to cost.

Appearances:

Peter Imhanguezogie, Esq. For Appellant(s)

Ebosele Okhifoh, Esq. For Respondent(s)