MR. JOSIAH AYO OLABIWONNU v. MRS. STELLA OLURANTI OLABIWONNU
(2014)LCN/7570(CA)
In The Court of Appeal of Nigeria
On Friday, the 28th day of November, 2014
CA/AK/139/2013
RATIO
PRACTICE AND PROCEDURE: ORDER V RULE 10 (1) OF THE MATRIMONIAL CAUSES RULES; THE EFFECT OF THE FAILURE TO DO EXACTLY WHAT IS REQUIRED IN THE PROVISION OF ORDER V RULE (1) AND THE EFFECT OF THE ACQUIESCE OF A PARTY WHEN AN IRREGULAR PROCEDURE IS ADOPTED IN A CIVIL ACTION
Order V Rule 10(1) of the Matrimonial Causes Rules provides as follows:
“A petitioner shall, by 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 the petition.”
In the case of Unegbu v. Unegbu (2004) 11 NWLR (Pt. 884) 332 this Court per Mahmud Mohammed JCA (as he then was) held that failure to do exactly what is required by the above rule could be fatal to a petition. In that case which is very similar to this in the sense that the above rule has not been complied with the petition was struck out. In that case objection was raised to the non compliance by the Respondent immediately he was served with the petition.
However, the Respondent in this case raised no objection to the processes served on him, participated in the trial and conceded in part to the petition in that he did not object to the dissolution of the marriage. It was after hearing, addresses of counsel and judgment that the Appellant now seeks to have the petition struck out for failure to comply with the above rule. When an irregular procedure is adopted with the acquiesce of a party to a civil action such irregular procedure cannot be a ground of appeal. Also where a wrong procedure has been followed in filing a process and no objection was raised by the party who should have objected, the Court is entitled to proceed with the hearing despite the wrong procedure followed. See Sonuga & 1 OR v. The Minister of the Federal Capital Territory & 1 OR (2010) LPELR 19789. The Appellant having maintained his silence on the wrong procedure in filing the petition after he had been served with the processes and participated in the trial to the end should therefore hold his peace. See also Order 21 Rules 2, 3 and 4 which provides as follows:
“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 thinks fit:
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
An application to set aside proceedings for irregularity shall not be allowed
a. If the application is not made within a reasonable time; or
b. If the party making the application has taken a relevant step after knowledge of the irregularity.
Nothing in the last preceding sub rule shall be taken to prevent a Court from exercising, of its own motion, any of the powers conferred on it by the last two preceding rules.
Where application is made to set aside proceedings for irregularity, the relevant objections intended to be relied upon shall be stated in the application.” per. JAMES SHEHU ABIRIYI, J.C.A.
FAMILY: DISSOLUTION OF MARRIAGE; WHEN CAN A DECREE FOR THE DISSOLUTION OF MARRIAGE ONLY BE GRANTED
With respect to the learned trial Judge and the parties in this case no marriage will be dissolved merely because the parties have agreed that it be dissolved. It will not be dissolved merely because it is a contract between two willing parties as the learned trial Judge held. Marriage is a very important institution. It is the foundation of a stable society. It is the nucleus of society in that it is the families that make the society. Marriages that are entered into and run out of by mere agreement of parties certainly would not auger well for the society. The policy of the law therefore is to preserve the institution of marriage. That is why marriages will not be dissolved on agreement of parties to it. A decree for the dissolution of marriage would therefore only the granted if the petitioner has proved that the marriage had broken down irretrievably and that the petitioner finds it intolerable to live with the respondent. See Section 15 of the Matrimonial Act and Damulak v. Damulak (2004) 8 NWLR (Pt. 874) 651. per. JAMES SHEHU ABIRIYI, J.C.A.
JUSTICES
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
MOHAMMAD AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria
Between
MR. JOSIAH AYO OLABIWONNU Appellant(s)
AND
MRS. STELLA OLURANTI OLABIWONNU Respondent(s)
JAMES SHEHU ABIRIYI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Osun State High Court sitting at Ilesa delivered on the 1st March 2013. The Respondent as Petitioner filed a divorce petition against the Respondent now Appellant claiming the following reliefs:
a. A Decree of Dissolution of the marriage celebrated on the 1st day of July, 1989 at St Thomas Catholic Church, Ogotun-Ekiti, between the Petitioner and the Respondent on the grounds that the marriage has broken down irretrievably, cruelty, and attempted murder cum threat to life.
b. An Order restraining the Respondent, from threatening, assaulting, harassing, visiting and disturbing the Petitioner either in her rented apartment or permanent home or her place of work or any other place whatsoever.
c. An Order of the Court ejecting the Respondent from the Petitioner’s house lying, situate and being at No 1 Oluranti Olabiwonnu Close, Ijangiri Quarters, behind Nigerian Breweries Plc, Imo, Ilesa.
OR
An Order directing the Respondent to pay to the Petitioner the sum of Two Million and Three Hundred Thousand Naira (N2,300,000.00) being the total sum expended by the Petitioner on the house lying, situate and being at No 1 Oluranti Olabiwonnu Close, Ijangiri Quarters, behind Nigerian Breweries Plc, Imo Ilesa.
OR
An Order of the Court directing the Respondent to collect from the Petitioner the sum of Seven Hundred Thousand Naira (N700,000.00) being the total sum expended by the Respondent on the house lying, situate and being at No 1 Oluranti Olabiwonnu Close, Ijangiri Quarters, behind Nigerian Breweries Plc, Imo Ilesa.
d. An Order mandating the Respondent to be paying to the Petitioner the sum of N25,000.00 as monthly allowance for the up-keep and educational pursuit of the children.
The Respondent and Appellant were joined in marriage on 1st July 1989 at St. Thomas Catholic Church Ogotun Ekiti. According to the Petitioner/Respondent not long after the marriage, she discovered that the couple was not compatible. The husband was always beating her. At times he would lock her up and thus prevent her from going to work. He was always suspecting her of going out with another man. She was even admitted in the hospital as a result of the beating. The Appellant even beat her sister and father who tried to intervene. She had to leave her house which she built when the husband poured hot water on her.
They both built the house. She was the one that bought the (plot) land in her husband’s name and her name. When she bought the land and started building, she was keeping the receipts with the husband to appease him and make him happy. The husband spent N700,000 on the building.
Although Mr. Olufemi Fafowora learned counsel for the Appellant at page 40 of the record of appeal stated that the appellant was only interested on the issue of the house, the Appellant nevertheless opposed the dissolution of the marriage because he invested in the wife and did not want to lose his investment. He also still loved the wife.
He denied ever beating the wife. He did not do anything to make the wife leave the matrimonial house. It was discovered in 2004 that the wife was befriending one Mr. Femi Odebode but she denied the affair. Since then, she started staying away from the house for days. Efforts to reconcile with her proved abortive. Although the wife caused him to be arrested by the police and be detained for two days, he still loved her.
The land and the house belonged to him and not to the wife. The house is not worth N3 million. He built it with mud block.
After considering the evidence before him and addresses of learned counsel for both parties, the trial court entered judgment in favour of the Petitioner/Respondent in part.
The Appellant was dissatisfied and has approached this Court asking it to set aside the judgment and dismiss the Respondent’s case upon six grounds of appeal. The following three issues were formulated from the six grounds of appeal.
1. Whether the writing of affidavit verifying the facts of the divorce petition on a separate document other then on the petition complied with Order V rule 10(1) of the Matrimonial Causes Rules 1983 to make the divorce petition of the respondent competent for the court to entertain. Ground 2, 3.
2. Whether or not the ancillary orders made by the trial court on settlement of property are supportable in law and in equity. Grounds 1, 4, 6.
3. Whether or not from the pleadings and evidence adduced by the parties their marriage could be said to have broken down irretrievably. (Ground 5)
The Respondent after arguing the issues formulated by the Appellant still formulated the following issues for determination:
a. Whether the Court below was right in holding that the marriage between the Respondent and the Appellant has broken down irretrievably.
b. Whether the Appellant can at this stage challenge the competence of the case he fully participated in.
c. Whether or not the lower Court was right in ordering the Respondent to vacate the house at No 1, Oluranti Olabiwonnu Close Ijangiri Quarters, Imo, Ilesa and that the said house be sold and the proceed therefrom be shared between the two parties.
Arguing issue 1, learned counsel for the Appellant submitted that the affidavit verifying the facts stated in the petition was not on the petition itself but filed separately.
This it was submitted was not in compliance with Order V Rule 10(1) of the Matrimonial Causes Rules 1983 and rendered the petition incompetent which robbed the Court of jurisdiction to entertain the suit. The petition, it was submitted, is at page 2 – 5 while a document titled “Certificate with regards to reconciliation” is at page 6 of the record. It would be incorrect to argue that the Appellant has waived the right to complain that the petition is incompetent for failure to comply with the rules of Court timeously and to now raise the issue on appeal because the Appellant pleaded thus:
“The Respondent shall contend at the trial of this suit that the petition is incompetent misconceived, lacks merit and should be dismissed.”
On issue 2, it was pointed out that the Respondent as PW1 said the house was her own and that she built it herself but that this is not supported by the pleadings. It was submitted that evidence led on facts not pleaded goes to no issue. We were referred to Ukpahah v. Ayaga (2011) 1 NWLR (Pt. 1227) 61 at 83 – 84. Therefore the claim of the Respondent that the Appellant be ejected from her house ought to fail.
Evidence of the Respondent, it was submitted was not clear when she testified to the effect that they both built the house and other pieces of evidence acknowledging joint ownership of the house. This it was submitted would not support the claim of the Respondent that the Appellant be ejected from the house. Therefore relief 9c ought to have been dismissed.
It was submitted that the fact of joint interest of the house was strengthened by PW3 when he said under cross – examination that the couple wanted to buy some building materials then.
It was submitted that the lower Court rightly held that the house was a matrimonial home jointly owned by the Petitioner and Respondent. As such the Respondent cannot be ejected therefrom as demanded by the Petitioner. However the lower Court somersaulted when it ordered the Respondent to vacate the matrimonial house.
The lower Court, it was submitted, was wrong to have ordered the Appellant to vacate the matrimonial house when the Respondent did not ask for the order granted. The Court, it was submitted, is not a Father Christmas that will grant a relief not sought. We were referred to Awoniyi v. Registered Trustees of AMORC (2000) 10 NWLR (Pt. 676) 522 at 544.
The Lower court, it was submitted, correctly held that the Respondent “cannot just be ejected” as demanded by the Petitioner only to overrule itself and consequentially order the Appellant to vacate the matrimonial home and further directed the Chief Registrar to conduct a public auction of the house and distribute the proceeds of sale. The order of the lower Court to this effect was not in the nature of a consequential order, it was submitted. A consequential order, it was submitted may not be properly made to give to a party an entitlement to a relief he has not established in his favour. We were referred to Akinbobola v. Plisson Fisko Nigeria Ltd & Ors. (1991) 1 NWLR (Pt. 167) 270 at 288, Awoniyi v. Reg Trustees of AMORC (Supra) 522 at 544-545, Liman v. Mohammed (1999) 9 NWLR (Pt. 617) 116 and OSSIEC v. AC (2010) 19 NWLR (Pt. 1226) 273 at 322 – 324.
It was submitted that the lower Court having found that the house was a matrimonial home jointly owned by the parties, ought to have invoked the provisions of Section 72 of the Matrimonial Causes Act, Cap 220, Laws of the Federation which deals with settlement of property. Section 72 of the Matrimonial Causes Act, it was submitted, is wide and sufficient for the Court to exercise its powers in settling the property without recourse to Yoruba custom which is inapplicable to this matter under the Marriage Act.
On issue 3, we were referred to the evidence of PW1 under cross – examination that she had two other children after the Appellants behavior had changed. That the Respondent left the matrimonial home on 5th April 2009. That as at the time she reported the Appellant to the police for alleged threat to kill in 2009, they were living together.
It was submitted that despite the fact that there were three children of the marriage, the Respondent still argued that the marriage was not consummated. It was submitted that Section 15(2)(a) of the Matrimonial Causes Act will not avail the Respondent because there was consummation of the marriage between the Respondent and the Appellant.
It was submitted that since the Respondent only packed out of the matrimonial home in 2009 even though there was sexual intercourse between the parties last in 2004 this is clear evidence of condonation. It was not enough merely to say she did not condone.
It was submitted that the ground of intolerability and incompatibility envisaged by Section 15(2)(c) of the Matrimonial Causes Act to ground dissolution of marriage must be based on any of the conditions laid down in Section 16(1)(a) to (g) of the Act. None of the facts established it was submitted is within the provision of Section 16(1)(a) to (g) of the Matrimonial Causes Act.
It was submitted that the petition was bound to fail because both the Appellant and the Respondent had lived with each other for periods after the date of the final incident relied on by the Respondent to bring her petition and which period was more than six months. The Court was referred to Section 17(1) of the Matrimonial Causes Act.
The Respondent, it was submitted, failed to establish the condition of intolerability envisaged by Section 15(2)(c) of the Act therefore the lower Court was wrong to have granted the decree for the dissolution of the marriage. Reliance was placed on Damulak v. Damulak (2004) 8 NWLR (Pt 874) 651 at 166.
On Appellant’s issue 1, learned counsel for the Respondent submitted that the appellant having failed to bring an application before the lower Court to set aside any irregularity in the petition cannot be heard to be raising such an objection at this stage for the first time. The case of Unegbu v. Unegbu (2004) 11 NWLR (Pt. 884) 332 relied upon by Appellant’s counsel is not applicable here, it was submitted. In that case a preliminary objection it was submitted was raised to the irregularity. This is not the position in this case. It was further submitted that under Order XXI Rules 2 – 4 of the Matrimonial Cause Rules, a petition cannot be defeated by any irregularity in the proceedings.
On issue 2, it was submitted that the lower Court has unfettered discretion to make the order it made for the Appellant to vacate the house and for same to be sold by the Chief Registrar. We were referred to Amaechi v. I.N.E.C. (2008) 33 NSCQLR (Pt. 1) 348.
On issue 3, it was submitted that the pleadings and evidence adduced by the parties show that the marriage had broken down irretrievably. The Court was referred to the remark of learned counsel for the Appellant at the trial court that they were not contesting the divorce and all they were interested in is the issue of the house. Having caused the Respondent to narrow the issue to the house, it would cause the Respondent hardship to go into whether or not the marriage had broken down irretrievably.
The lower Court was therefore right; it was submitted, in pronouncing the dissolution of the marriage.
I have taken a look at the arguments canvassed on three issues which Respondent formulated and there is nothing in them to choose from. I will therefore determine the appeal only on the issues formulated by the Appellant and which both parties have argued extensively.
Order V Rule 10(1) of the Matrimonial Causes Rules provides as follows:
“A petitioner shall, by 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 the petition.”
In the case of Unegbu v. Unegbu (2004) 11 NWLR (Pt. 884) 332 this Court per Mahmud Mohammed JCA (as he then was) held that failure to do exactly what is required by the above rule could be fatal to a petition. In that case which is very similar to this in the sense that the above rule has not been complied with the petition was struck out. In that case objection was raised to the non compliance by the Respondent immediately he was served with the petition. However, the Respondent in this case raised no objection to the processes served on him, participated in the trial and conceded in part to the petition in that he did not object to the dissolution of the marriage. It was after hearing, addresses of counsel and judgment that the Appellant now seeks to have the petition struck out for failure to comply with the above rule.
When an irregular procedure is adopted with the acquiesce of a party to a civil action such irregular procedure cannot be a ground of appeal. Also where a wrong procedure has been followed in filing a process and no objection was raised by the party who should have objected, the Court is entitled to proceed with the hearing despite the wrong procedure followed. See Sonuga & 1 OR v. The Minister of the Federal Capital Territory & 1 OR (2010) LPELR 19789. The Appellant having maintained his silence on the wrong procedure in filing the petition after he had been served with the processes and participated in the trial to the end should therefore hold his peace. See also Order 21 Rules 2, 3 and 4 which provides as follows:
“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 thinks fit:
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
An application to set aside proceedings for irregularity shall not be allowed
a. If the application is not made within a reasonable time; or
b. If the party making the application has taken a relevant step after knowledge of the irregularity.
Nothing in the last preceding sub rule shall be taken to prevent a Court from exercising, of its own motion, any of the powers conferred on it by the last two preceding rules.
Where application is made to set aside proceedings for irregularity, the relevant objections intended to be relied upon shall be stated in the application.”
On the above Order and rules the invitation to declare the proceedings and judgment of the lower Court a nullity for non compliance with Order 5 Rule 10(1) of the Matrimonial Causes Rules must be rejected. Unegbu v. Unegbu (Supra), Madukolu v. Nkemdilim (1962) 1 A.N.L.R. 581 and Menakaya v. Menakaya (2001) 16 NWLR (Pt. 738) 203 relied upon by Appellant’s counsel are not relevant to this issue.
Issue 1, is therefore resolved in favour of the Respondent.
The Respondent sought for an order ejecting the Appellant from her house. However as the Lower Court rightly found none of the parties proved their respective claims to exclusive ownership of the house and held that the house was a matrimonial (house) home. He also rightly held that the Appellant could not be ejected from the house as claimed by the Respondent. He however ordered the Appellant to vacate the house and for it to be sold by auction by the Chief Registrar and the proceeds distributed. I agree entirely with Appellant’s counsel that there was no basis for the somersault by the Lower Court. Having found that the Appellant cannot be ejected from the house it amounted to the same thing asking him to vacate the house and for it to be sold and the proceeds distributed according to Yoruba custom. I agree entirely with learned counsel for the Appellants that Yoruba customary Law was inapplicable to this petition for the dissolution of a statutory marriage. There was therefore no basis for invoking Customary Law principles of distribution of the proceeds of the sale of the house. The order asking the Appellant to vacate the house having been wrongly made in the first place, the issue of sale of the house did not therefore arise. The issue of dealing with the house under Yoruba custom also had no basis as the marriage between the parties was not customary but statutory marriage.
Issue 2 is resolved in favour of the Appellant.
Page 40 of the record of appeal contains the following conversation:
“Court: Mr. Fafowora; are you contesting the dissolution of the marriage.
Fafowora: we are not contesting the divorce and we are leaving the issue of custody of the children to the discretion of the court. All that we are interested in is the issue of the house in question.
Olawole: Now that this (sic) issues have been narrowed down I will lead evidence to that issue.”
From the foregoing conversation, the parties agreed to the dissolution of the marriage between them. It is not surprising therefore that the lower Court in its judgment stated thus:
“However, it should be remembered that a marriage is a contract between two willing parties. It cannot be compelled.”
With respect to the learned trial Judge and the parties in this case no marriage will be dissolved merely because the parties have agreed that it be dissolved. It will not be dissolved merely because it is a contract between two willing parties as the learned trial Judge held. Marriage is a very important institution. It is the foundation of a stable society. It is the nucleus of society in that it is the families that make the society. Marriages that are entered into and run out of by mere agreement of parties certainly would not auger well for the society. The policy of the law therefore is to preserve the institution of marriage. That is why marriages will not be dissolved on agreement of parties to it. A decree for the dissolution of marriage would therefore only the granted if the petitioner has proved that the marriage had broken down irretrievably and that the petitioner finds it intolerable to live with the respondent. See Section 15 of the Matrimonial Act and Damulak v. Damulak (2004) 8 NWLR (Pt. 874) 651.
In this case the petitioner pleaded various acts of cruelty and testified to alleged beating meted out not only on her but her sister and father who is now late and that the final blow was when the appellant poured hot water on her. She said she had to leave when the appellant poured hot water on her.
As learned counsel for the appellant has not shown that this final act of cruelty was condoned, I am of the view that the respondent was entitled to the dissolution of the marriage under Section 15(1) and (2) (c) of the Matrimonial Causes Act and not because the marriage was a contract between two willing parties.
Issue 3 is resolved in favour of the respondent.
Issue 2 having been resolved in favour of the appellant, the appeal succeeds in part.
The order of the court ordering the appellant to vacate the matrimonial house at no 1, Oluranti Olabiwonnu Close, Itagiri quarters, behind Nigerian Breweries Plc, Imo Ilesa and directing the Chief Registrar to get a valuer to value the house, sell by public auction and distribute the proceeds is hereby set aside.
I affirm the decree granted for the dissolution of the marriage and the order restraining the Appellant from threatening or disturbing the Respondent at her place of work or abode.
As parties were husband and wife. Each of them is to bear their respective costs
MOJEED ADEKUNLE OWOADE, J.C.A.: I read before now the judgment just delivered by my learned brother James Shehu Abiriyi, JCA. I agree entirely with him that the appeal be allowed in part, I too allow the appeal in part. I wish to comment briefly on the irregularity raised by the Appellant by way of emphasis to the very well and elaborately considered views of my learned brother. The Appellant complained that the petition is incompetent for failure to comply with rules of court and oust the court the jurisdiction to entertain the suit.
The Appellant participated fully in the trial where the purported irregular procedure was adopted, he did not raise any objection to the processes served on him, rather conceded among other to the dissolution of the marriage. It is trite that if a counsel or party treats a document, procedure or matter as admissible or regular, then he cannot be heard or be at liberty to object or complain later or before an appellate court. The Appellant’s learned counsel did not oppose the petition when it came up for hearing, having consented he could not later resile or complain. The consent was and amounted to an undertaking that the Appellant had permanently waived his right, if any, to object or complain. See SPDCN Ltd. v. Edamkue (2009) 14 NWLR (Pt. 1160) 1; Egbaran v. Akpotor (1997) 2 NWLR (Pt. 514) 559.
I abide with the consequential order(s) made therein.
MOHAMMED AMBI-USI DANJUMA, J.C.A.: I agree that the appeal be allowed in part only in terms of the reasons adumbrated in the Lead Judgment prepared and just delivered by my brother, Abiriyi, JCA.
Appearances
T. S. Adegboye EsqFor Appellant
AND
A. O. Olawole Esq.For Respondent
