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UKEJE v. UKEJE (2021)

UKEJE v. UKEJE

(2021)LCN/15760(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Thursday, April 01, 2021

CA/L/504/2018

Before Our Lordships:

Obande Festus Ogbuinya Justice of the Court of Appeal

Abubakar Sadiq Umar Justice of the Court of Appeal

Abdullahi Mahmud Bayero Justice of the Court of Appeal

Between

MRS. TIWALADE KEHINDE UKEJE APPELANT(S)

And

UCHE KELECHI UKEJE RESPONDENT(S)

 

RATIO

WHETHER OR NOT RULES OF COURT MUST BE FOLLOWED

It is settled law that rules of Court are not for window dressing. They are aimed at achieving justice in cases brought before the Court. Therefore, they are meant to be obeyed and adhered to by parties before the Court. See the case of OFODILE V. AGUSIOBO & ORS (2013) LPELR-21226 (CA). In the instant case, the Rules of Court in question is the Matrimonial Causes Rules, specifically Order V Part 1 Rules 1 (3) (f); 6 (1), (2) (a), (b), 6 (3); 10 (1) (a) and (b).
For the sake of clarity, the rules are set out below:
“ORDER V
Part 1 – General 1
(3) A petition shall state

(f) particulars of previous proceedings between the parties to the marriage.
6. (1) This Rule shall relate to the particulars of previous proceedings as are required to be stated in a petition for the purpose of paragraph (f) of sub-rule (3) of Rule 1 of this Order of these Rules.
(2) Subject to sub-rule (3) of this rule, the petition shall state the particulars of any proceedings
(a) That have, since the marriage to which the petition relates, been instituted within Nigeria or elsewhere in any Court within the parties to the marriage; and
(b) concerning the maintenance, custody, guardianship, welfare, advancement or education of a child of that marriage that have been instituted, whether in Nigeria or elsewhere, other than between those parties.
(3) Where no proceedings referred to in sub-rule (2) of this rule have been instituted, the petition shall include a statement to that effect.
10. (1) A petitioner shall, by his affidavit, written on his petition and sworn before his petition is filed –
(a) verify the facts stated in his petition of which he has personal knowledge; and
(b) depose to his belief in the truth of every other fact stated in his petition.”
PER UMAR, J.C.A.

THE MEANING OF THE WORD “SHALL” IN THE INTERPRETATION OF STATUTE

​Generally, “shall” is a word of command that denotes obligation by imposing a duty and gives no room to discretion. However, the term is sometimes construed as merely permissive or directory to carry out the legislative intention, particularly in cases where it is being construed in mandatory sense will bestow no right or benefit to anyone. When construed as being permissive or directory, it carries the same meaning as the word “may”. See the case of KATTO V. CBN (1991) LPELR-1678 (SC). Even when the word is found to be used in a mandatory sense, it is not always the case that strict adherence is mandatory. The Supreme Court per Peter-Odili, J.S.C. in the case of UMEAKUANA V. UMEAKUANA (2019) 14 NWLR (PT. 1691) 61 at 83 PARAS. B – H posited thus:
“It is to be said along well settled views of this Court that mandatory Rules are not sacrosanct or cast in iron since situations occur while applying the Rules where the interest of substantial justice would be ruling the waves make an otherwise mandatory rule are to become directory or permissive as all rules of Court are made in aid of justice and so the interest of justice will take paramount over any Rule where strict compliance of it will lead to outright injustice. See Oputa, J.S.C. in OLOBA V. AKEREJA (1988) 3 NWLR (PT. 84) 508 at 528.
Belgore, J.S.C. (as he then was) in FGN V. ZEBRA ENERGY LTD (2002) 18 NWLR (PT. 798) 162 at 204 – 205 stated thus:
“No Court of law shall be shackled by procedure, case is not made for procedure rather it is the other way round. If the procedure employed has clearly brought out the issue the parties contest, it will not matter that the procedure is not the correct one. Getting to the destination is what is important, it does not matter the means.” PER UMAR, J.C.A.

ABUBAKAR SADIQ UMAR, J.C.A. (Delivering the Leading Judgment): This appeal is against the ruling of the High Court of Lagos State, Lagos Judicial Division delivered by Hon. Justice Y.O. Idowu on 15th February, 2018, wherein the learned trial Judge dismissed the Appellant’s answer under protest.

BRIEF STATEMENT OF FACTS
The facts leading up to this appeal are straightforward. On 28th September, 2015, the Respondent filed a petition for dissolution of marriage between the parties in suit no. LD/1742HD/2015, but withdrew same before the Appellant entered appearance. However, the Respondent did not effect service of the notice of withdrawal on the Appellant.

The Respondent on 20th November, 2015 filed another petition for dissolution of the marriage between the parties (see pages 1 – 14 of the record of appeal). In response, the Appellant filed an answer under protest and an affidavit in support filed on 28th April, 2016 (see pages 78 – 103).

​The Appellant, however filed an application dated 4th February, 2016 for the relisting of suit no: LD/1742HD/2015 before M.A. Savage, J. before whom the petition was originally filed prior its withdrawal (see page 100 of the record of appeal). The Respondent filed a counter-affidavit opposing the Appellant’s application to relist. The Court in its ruling contained at pages 162 – 169 of the record delivered on 19th January, 2017 dismissed the application.

The Respondent filed a reply to the Appellant’s answer under protest (see pages 157 – 159 of the record of appeal), to which the Appellant filed a notice of preliminary objection. The notice of preliminary objection was struck out by the trial Court.

The Appellant in her answer under protest sought the following:
“1. AN ORDER that the petition dated 20th of November, 2015 filed by the Petitioner be struck out because this Honourable Court lacks the Jurisdiction to entertain the petition and the petition is manifestly incompetent and a gross abuse of Court process having regard to the grounds stated in Paragraphs 1A, 1B, 1C, 1D, 1E above.
2. AN ORDER that the Petitioner be debarred from filing any further petitions or continuing any proceedings under the Matrimonial Causes Act against the Respondent until this answer under protest or all the proceedings in the prior petition in Suit No. LD/1742HD/15 filed by the Petitioner or the Respondent in any other suit are all first determined.”

The trial Court heard the Appellant’s answer under protest and delivered its ruling on 15th February 2018 wherein it dismissed the answer under protest (see pages 228 – 235). In the said ruling, the learned trial Judge held inter alia that the non-compliance with the Rules as complained by the Appellant occasioned no miscarriage of justice and should be treated as an irregularity as to form and not as to substance.

Aggrieved by the ruling of the trial Court, the Appellant has appealed to this Court via a notice of appeal dated 28th February, 2018 and filed on the same day. The notice of appeal which is at pages 244 – 247 of the notice of appeal contains three grounds of appeal.

In line with the rules and practice of this Court, parties filed and exchanged their briefs of argument. The Appellant’s brief argument which is dated 1st June, 2018 and filed on the same day was settled by AKINTUNDE WIILIAMS, ESQ.

​The Respondent’s brief on the other hand was settled by PATRICK OKONJO, ESQ. The brief is dated 29th April, 2019 and filed on 6th May, 2019.
The Appellant also filed a reply brief dated and filed on 10th December, 2020.

ARGUMENTS AND SUBMISSIONS OF COUNSEL FOR THE PARTIES
Appellant’s counsel at paragraph 2.1 of his brief of argument formulated the following issues for the determination of the instant appeal:
“(1) Whether in the circumstances of this case, the petition is incompetent by virtue of its non-compliance with the provisions of the Matrimonial Causes Rules and therefore deprives the Honourable Court of jurisdiction to entertain and determine the Respondent’s petition dated 20/11/15.
(2) Whether a manifestly false and incorrect statement in the petition and verifying affidavit supporting same can be taken as mere “form” and not “substance” therein.”

Arguing issue 1, learned counsel submitted that compliance with Rules of Court is crucial to judicial proceedings and failure to comply as in this case, is often regarded as a threshold issue. He submitted that the Respondent’s petition was filed in gross abuse of Court process having failed to comply with the provisions of the Matrimonial Causes Rules, particularly Order V Part 1 Rules 1 (3) (f); 6 (1), (2) (a), (b), 6 (3); 10 (1) (a) and (b) as well as Order VII Part 3 Rule 11. That the use of the word “shall” in Order V Rule 10 (1) (a) – (b) and Order VII PRT 3 Rule 11 (1) of the Matrimonial Causes Rules makes the provisions therein mandatory.

It was further submitted that the Respondent herein chose to ignore the mandatory provisions of the Matrimonial Causes Rules referred to above by concealing the fact of previous proceedings in his petition and falsely deposing to his belief in the truth of the fact in his verifying affidavit. That the Respondent’s act amounted to perjury which violates Section 115 of the Evidence Act.

Counsel also submitted that by virtue of the Matrimonial Causes Rules, a Petitioner is required to depose to his verifying affidavit within 21 days before the petition is filed. That the Respondent herein violated the Rules of Court by deposing to the verifying affidavit on the same day his petition dated 20th November, 2011 was filed. It was submitted that non-compliance with the aforementioned provisions of the Matrimonial Causes Rules is fatal and renders the Respondent’s Petition manifestly incompetent. He relied on the cases of UMEAKUANA V. UMEAKUANA (2009) 3 NWLR (PT. 1129) 598; UNEGBU V. UNEGBU (2004) 11 NWLR (PT. 332) 366.

On issue 2, counsel submitted that the denial of the previous proceedings by the Respondent in his petition and verifying affidavit is manifestly false and must be regarded by this Court as relating to substance and not form as decided by the trial Court. He referred to the case of AFEGBAI V. AG EDO STATE (2001) 14 NWLR (PT. 733) 425 and submitted that a false representation as is apparent in the Respondent’s petition and verifying affidavit goes to substance and not to form. It was also submitted that the case of ODUSOTE V. ODUSOTE (2012) 3 NWLR (PT. 1288) 478 relied on by the trial Court dealt with the complaint of non-endorsement of the verifying affidavit on the petition and not the issues raised by the Appellant.
Learned counsel finally urged this Court to set aside the ruling of the trial Court.

​On his part, Respondent’s counsel argued the issues as formulated by the Appellant’s counsel. Arguing issue 1, he pointed out that the issue of failure of the Respondent to file his verifying affidavit within 21 days before filing its petition does not arise from the ratio decidendi of the decision appealed against. That the issue was neither captured in the ruling of the lower Court, neither was it argued in the hearing of the Appellant’s answer under protest. Learned counsel referred to the case of UDUAK ETIM OKON V. EKAETTE UDUAK OKON (2016) LPELR-42056 (CA) and submitted that a ground of appeal and an issue in a brief of argument must emanate from the judgment complained of. He therefore urged this Court to discountenance the issue and expunge same from this appeal.

On the contention of the Appellant that “shall” as used in the Matrimonial Causes Rules denote compulsion; counsel submitted that this is not always the case because whether the word “shall” is used in a mandatory or directory sense will depend on the circumstances of the case. He relied on the following cases ONIGA V. AKWA IBOM STATE & ANOR (2016) LPELR-40112 (CA); AMOKEODO V. IGP (1999) 6 NWLR (PT. 607) 467; OJU LOCAL GOVERNMENT & ORS V. INEC (2007) LPELR-8235 (CA); UMEANADU V. ATTORNEY GENERAL ANAMBRA STATE (2008) 9 NWLR (PT. 1091) 175; ABDULLAHI V. THE MILITARY ADMINISTRATOR & ORS (2009) 15 NWLR (PT. 1165) 417.

Counsel further submitted that the Respondent complied with the provisions of the Matrimonial Causes Rules as it relates to the manner in which a petition should appear after same has been properly filed. That in the circumstances of this matter and the cases cited, the use of the word “shall” in Order V Rule 10 (1) of the Matrimonial Causes Rules cannot obligation as such an interpretation will render incompetent, a petition that is otherwise competent in all material respect.

He also submitted that the Appellant is only holding on to technicalities which cannot supersede substantial justice. The cases of JOHN PHILLIP OKECHUKWU TABANSI V. VIVIAN IFEOMA TABANSI (2008) LPELR-4365 (CA); ONUORA MBA V. UDEOZOR CHIGHO MBA (2018) LPELR-44295 (SC) were referred to. Counsel urged the Court to resolve this issue in favour of the Respondent.

​On issue 2, learned counsel submitted that the Respondent did not make a manifestly false or incorrect statement in his petition before the trial Court as he was guided by Order VI Rule 6 (4) of the Matrimonial Causes Rules which explained that proceedings in matrimonial matters are suits that have been heard and determined by the Court. It was also submitted that where an irregularity is as to form and not as to substance, it should not vitiate a suit. That instances where an irregularity may be regarded as being as to form include procedural defaults that do not affect the proceedings or any decision that may arise from same. Reliance was placed on the case of ODUSOTE V. ODUSOTE (2012) 3 NWLR (PT. 1288) 499.

​It was the further submission of learned counsel that the trial Court rightly held that the omission complained of by the Appellant has no bearing on the subject of the petition or any other part thereof. He submitted that the Respondent having filed his petition and stated his case, all that the Appellant should have done is to file an answer or a cross-petition. That the trial Court can only dismiss off the petition after hearing the parties on the merit. He finally urged this Court to resolve both issues in favour of the Respondent, dismiss this appeal with costs and refer the matter back to the trial Court for proper determination.

In his reply brief, Appellant’s counsel dedicated paragraph 2 spanning pages 3 – 6 to replying to the submissions of the Respondent under issue 1 contained in his brief of argument.

​In his reply to the Respondent’s submissions under issue 2, he submitted that Order VI Part 1 Rule 6 (4) purportedly relied on by the Respondent for the meaning of “proceedings” does not exist in the Matrimonial Causes Rules. That the entire provisions of Order V Part 1 of the Matrimonial Causes Rules deal with service of documents, while Order V Part 1 is the only order which contains the details of particulars required to be included in a petition. He further submitted that the provisions of Order 6 which mandates a Petitioner to include particulars of previous proceedings in his petition all stipulate that “the Petitioner shall state particulars of any proceedings”. That suit no. LD/1742HD/2015 constituted matrimonial cause and qualifies as “any proceedings” under the Rules. He therefore urged this Court to allow this appeal and set aside the decision of the trial Court.

RESOLUTION
Having considered the grounds of appeal vis-à-vis the issues formulated by counsel for the parties, I am of the opinion that the understated issue will suffice for the determination of this appeal:
Whether the learned trial Judge was right in holding that the failure of the Appellant’s to include particulars of suit no. LD/1472HD/2015 in his petition before the trial Court should be treated as a mere irregularity?

It is settled law that rules of Court are not for window dressing. They are aimed at achieving justice in cases brought before the Court. Therefore, they are meant to be obeyed and adhered to by parties before the Court. See the case of OFODILE V. AGUSIOBO & ORS (2013) LPELR-21226 (CA). In the instant case, the Rules of Court in question is the Matrimonial Causes Rules, specifically Order V Part 1 Rules 1 (3) (f); 6 (1), (2) (a), (b), 6 (3); 10 (1) (a) and (b).
For the sake of clarity, the rules are set out below:
“ORDER V
Part 1 – General 1
(3) A petition shall state

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(f) particulars of previous proceedings between the parties to the marriage.
6. (1) This Rule shall relate to the particulars of previous proceedings as are required to be stated in a petition for the purpose of paragraph (f) of sub-rule (3) of Rule 1 of this Order of these Rules.
(2) Subject to sub-rule (3) of this rule, the petition shall state the particulars of any proceedings
(a) That have, since the marriage to which the petition relates, been instituted within Nigeria or elsewhere in any Court within the parties to the marriage; and
(b) concerning the maintenance, custody, guardianship, welfare, advancement or education of a child of that marriage that have been instituted, whether in Nigeria or elsewhere, other than between those parties.
(3) Where no proceedings referred to in sub-rule (2) of this rule have been instituted, the petition shall include a statement to that effect.
10. (1) A petitioner shall, by his affidavit, written on his petition and sworn before his petition is filed –
(a) verify the facts stated in his petition of which he has personal knowledge; and
(b) depose to his belief in the truth of every other fact stated in his petition.”
From the above, it is obvious that the provisions, non-adherence to which the Appellant complains relate to including particulars of previous proceedings in the petition and verifying affidavit. In the above provisions, the word “shall” is used. It is the contention of the Appellant that the use of the word “shall” connotes mandatoriness and failure to adhere to the provisions of that rules vitiates the Appellant’s petition and verifying affidavit. The Respondent on the other hand contends that the word “shall” sometimes directory and that the circumstances of the case will determine whether it connotes compulsion or persuasion.
​Generally, “shall” is a word of command that denotes obligation by imposing a duty and gives no room to discretion. However, the term is sometimes construed as merely permissive or directory to carry out the legislative intention, particularly in cases where it is being construed in mandatory sense will bestow no right or benefit to anyone. When construed as being permissive or directory, it carries the same meaning as the word “may”. See the case of KATTO V. CBN (1991) LPELR-1678 (SC). Even when the word is found to be used in a mandatory sense, it is not always the case that strict adherence is mandatory. The Supreme Court per Peter-Odili, J.S.C. in the case of UMEAKUANA V. UMEAKUANA (2019) 14 NWLR (PT. 1691) 61 at 83 PARAS. B – H posited thus:
“It is to be said along well settled views of this Court that mandatory Rules are not sacrosanct or cast in iron since situations occur while applying the Rules where the interest of substantial justice would be ruling the waves make an otherwise mandatory rule are to become directory or permissive as all rules of Court are made in aid of justice and so the interest of justice will take paramount over any Rule where strict compliance of it will lead to outright injustice. See Oputa, J.S.C. in OLOBA V. AKEREJA (1988) 3 NWLR (PT. 84) 508 at 528.
Belgore, J.S.C. (as he then was) in FGN V. ZEBRA ENERGY LTD (2002) 18 NWLR (PT. 798) 162 at 204 – 205 stated thus:
“No Court of law shall be shackled by procedure, case is not made for procedure rather it is the other way round. If the procedure employed has clearly brought out the issue the parties contest, it will not matter that the procedure is not the correct one. Getting to the destination is what is important, it does not matter the means.”
The purport of the holding of the apex Court in the above cited case is that where the word shall connote compulsion, adherence to same is not always mandatory and the interest of justice is the primary consideration. In the instant appeal, while the Appellant made a false statement in his petition wherein he stated that there had not been any previous proceedings between the parties and deposing to the correctness of same in his verifying affidavit, I do not see how that has affected the course of justice. While it is desirable to always obey rules of Court, they cannot override the desirability of the Courts to always achieve substantial justice between the parties.
Furthermore, the Order XXI of the Matrimonial Causes Rules provides that non-compliance with the Rules shall not render the proceedings void unless the Court so directs. See the case of TABANSI V. TABANSI (2018) 18 NWLR (PT. 1659) 271. I therefore agree with the trial Court that where as in the instant case, non-compliance does not occasion a miscarriage of justice; it should be treated as an irregularity which should not vitiate the proceedings.

On the contention of the Appellant that the Respondent failed to swear to his verifying affidavit 21 days before the filing of the petition as required by the Matrimonial Causes Rules, a perusal of the record of appeal and the decision appealed against would reveal that this issue was not raised at the trial Court. The Appellant has raised this issue for the first time in this Court. It is trite that a party cannot raise an issue for the first time on appeal without first seeking and obtaining leave of Court. See the case of ONWUKA V. ONONUJU & ORS (2009) LPELR-2721 (SC). In the instant appeal, the Appellant did not seek leave of Court to raise the issue of the time of filing of the Respondent’s verifying affidavit. The issue, together with the arguments and submissions thereon are hereby discountenanced.

​Flowing from the hills of the above, I hereby hold that the statement of the Respondent in his petition before the trial Court that there were no previous proceedings in Court between him and the Appellant and his verifying the correctness of the statement in his verifying affidavit amount only to a mere irregularity which cannot vitiate the proceedings. The sole issue is hereby resolved in favour of the Respondent and against the Appellant. I hereby hold that the Respondent’s petition before the trial Court dated and filed on 20th November, 2015 is competent.
In the final analysis, I find no merit in this appeal and same is hereby dismissed. I make no order as to costs.

OBANDE FESTUS OGBUINYA, J.C.A.: I had the singular opportunity to peruse, in draft, the leading judgment delivered by my learned brother, Abubakar Sadiq Umar, J.C.A. I endorse, in toto, the reasoning and conclusion in it.

​The importance of due conformity with the rules of Court cannot be over-emphasised. However, due compliance with them is disabled in the face of crying need for realization of justice. The rules of Court cannot lord it over the attainment overriding interest of justice which is the primary duty of Court of law. Interest of justice cannot be sacrificed on the underserved altar of rules of Court.

This is the bane of the appellant’s appeal. Consequently, I too, dismiss the appeal in the manner decreed in the leading judgment.

ABDULLAHI MAHMUD BAYERO, J.C.A.: I was privileged to read in draft the lead judgment delivered by my learned brother ABUBAKAR SADIQ UMAR, J.C.A. I also find no merit in this appeal and hereby dismissed by me. I abide by the order as to costs.

Appearances:

A. William (SAN), with him, Babajide Jinadu For Appellant(s)

Patrick Okonjo For Respondent(s)