UMAR v. UMAR (2022)

UMAR v. UMAR

(2022)LCN/16581(CA)

In The Court Of Appeal

(AKURE JUDICIAL DIVISION)

On Tuesday, February 22, 2022

CA/AK/27/2020

Before Our Lordships:

Rita Nosakhare Pemu Justice of the Court of Appeal

Hamma Akawu Barka Justice of the Court of Appeal

Yusuf Alhaji Bashir Justice of the Court of Appeal

Between

MRS. ANTHONIA OLUWATOYIN UMAR APPELANT(S)

And

COL. AHMED UMAR (RTD) RESPONDENT(S)

RATIO

THE POSITION OF LAW ON THE OBJECT OF SERVICE OF COURT PROCESS

The law is very trite that the object of service of process, whether personal or substituted, is to give notice to the other party on whom service is to be effected so that he might be aware of, and able to resist if he may that which is sought against him.” See United Nigeria Press Ltd V. Adebanjo (1969) LPELR 25571 (SC).
Personally whereas process of Court must be served on the party concerned except where personal service is not humanly possible in such instances substituted service is usually allowed, and such substituted service if complied with in the manner ordered by the Court it shall be deemed good and sufficient. Only then is the Court competent to assume jurisdiction to hear and determine the matter. See Mobil Nig. Plc V. Ezekiel Shut Pam (2000) 5 NWLR (Pt. 657) p. 506. PER BASHIR, J.CA.

THE POSITION OF LAW WHERE SUBSTITUTED SERVICE CAN BE EMPLOYED

It is trite that substituted service can be employed when for any reason a defendant can not be served personally with the process of Court for example when he cannot be traced or when it is obvious that the Defendant is evading service. See Kida V. Ogunmola (2006) LPELR-1690 (SC).
In this case, all that is required to justify granting the order for substituted service has been established. See Mark V Eke (2004) FWLR (Pt. 200) 1455.
It is trite that once leave is obtained and the service complies with the order of the Court such service is unimpeachable the Defendant cannot be heard to complain of lack of fair hearing. See Dickson V. Okoi (2003) 16 NWLR (Pt. 846) 397, Shahimi V. Akinola (1993) 5 NWLR (Pt 294) 434 and Aliyu A. A. V. Kamba (2019) LPELR 47254 CA per Oho JCA.
“It does not matter whether or not the Defendant becomes aware of the proceedings as the applicant is not duly bound to prove this.”
Cited Dickson V. Okoi (supra). PER BASHIR, J.CA.

WHETEHR OR NOT JOINDER OF ADULTERERS IS A REQUIREMENT OF LAW WHERE ADULTERY IS ALLEGED IN ANY PETITION FOR DISSOLUTION OF MARRIAGE

Section 32(1) of the Matrimonial Causes Act requires that where adultery is alleged in any petition for the dissolution of marriage or in an answer to the petition with a specified person it shall be necessary to make such person a party to the proceedings.
Section 32(1) of the Matrimonial Causes Act provides as follows:
“32(1) Where in a petition for a decree of dissolution of marriage or in an answer to such petition, a party to the marriage is alleged to have committed adultery with a specified person, whether or not a decree 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.”
By Order IX Rule 3(1) of the Matrimonial Causes Rules any petition for dissolution of marriage where there is an allegation that the Respondent has committed adultery with a person whose name is unknown, the suit shall not be set down for trial unless the Court has made an order dispensing with the naming of the person.
Going by the provision of the Matrimonial Causes Act and the Matrimonial Causes Rules whenever there is an allegation of adultery in the petition for a dissolution of marriage or an answer thereto it is mandatory to name the adulterer by making him a party to the proceedings in the case of Eigbe V. Eigbe (2012) LPELR 19690.
It was held per Justice S. D. Bage that:
“Joinder of adulterers is a must requirement of the law. Where such adulterers are not joined, the petitioner cannot use any legal process for dissolution of marriage on that ground. The law is already settled that where a statute provide a means which an action must be commenced, legal proceedings cannot be commenced by any other means. A claimant who might have a cause of action looses the right to enforce it by judicial means.”
In this case, the petitioner not only made allegation of adultery against the Appellant but went on to attach to the petition, the photograph of the alleged adulterer, yet he was not joined as a Respondent in the petition. Whereas there is no evidence that the (a) adulterer had died (b) is a minor or (c) an infant. See Order IX Rule (6).
Failure to so join him by the rules is a bar to setting down the petition for trial. When there is no order of Court dispensing with the naming of the adulterer, the Court had no business setting down the petition for hearing at the time it did. PER BASHIR, J.CA.

THE POSITION OF LAW ON THE POWER OF THE COURT TO DISSOLVE MARRIAGES

The power of Court to dissolve marriages is one which should be cautiously applied, because such jurisdictions involve status of the parties, the children and indeed families, it is a sacred institution that must be sanctified. Accordingly, public interest and the law demands that marriage bond must not be set aside unless absolutely necessary and unavoidable. There must therefore be “strict proof of the grounds and after a painstaking judicial enquiry”. See Oguntoyinbo V. Oguntoyinbo (2017) LPELR 42174 and Adeparusi V. Adeparusi (2014) LPELR 4111.
This is necessary because divorce proceedings clearly are sui generis with its separate set of rules unlike the normal and ordinary civil proceedings the petitioner is therefore required to strictly prove his averments in the petition irrespective of any admission by the Respondent. PER BASHIR, J.C.A.

YUSUF ALHAJI BASHIR, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the Osun State High Court holden at Ikirun in Suit No: HIK/24D/2018 delivered on the 28th day of February, 2020 dissolving the marriage between the Appellant and the Respondent, being a default judgment, the petitioner brought an application to set aside the judgment, the trial Court dismissed the application in its ruling on 27th day of January, 2020.

With the leave of this Court granted on the 30th day of September, 2020, the Appellant filed an appeal against the decision of the trial Court vide a Notice of Appeal dated 9th day of October, 2020 but filed on the 12th day of October, 2020 with six grounds of appeal. Without their particulars, the grounds of appeal run thus:
(1) The learned trial Judge erred in law by denying the Appellant fair hearing when he delivered default judgment in favour of the Respondent who was the Petitioner at the trial without ensuring that there were concrete and valid proofs that the Appellant was duly served with the originating processes and hearing notice of the proceedings at the trial till the date of judgment of this has occasioned a miscarriage of justice. Ground Two
(2) The learned trial Judge erred in law when he gave judgment on the petition which was basically incompetent and this has occasioned a miscarriage of justice. Ground three.
(3) The learned trial Judge erred in law when he gave judgment to the Respondent by granting dissolution of the marriage, awarding the custody of all the children of the Respondent and granting the matrimonial property at Bankole Layout, Peace Estate, Magboro Ibusha, Ogun State to the Respondent without taking into consideration the mandatory rules of granting of ancillary relief in matrimonial proceedings and this occasioned a miscarriage of justice. Ground four.
(4) The learned trial Judge misdirected himself in law when he gave conclusive opinion of infidelity on the Appellant and castigated her character with demeaning harsh words on the sole evidence of the Respondent without valid proofs. Ground five.
(5) The learned trial Judge erred in law when he refused to set aside the judgment of the Court on the application of the Appellant. Ground six.
(6) The decision of the Court is against the weight of evidence. The reliefs sought by the Appellant are:
(1) An order allowing the appeal
(2) An order setting aside the decision of the trial Court.
(3) An order dismissing the petition at the trial Court for being incompetent.

The record of appeal was duly transmitted on 7th December, 2020. Mr. Kehinde K. Aladedutire Esq., settled and filed the Appellant’s Brief on the 15th January, 2021 in which the learned Counsel formulated three (3) issues for determination thus:
(1) Whether the petition of the Respondent at the trial Court was competent.
(2) Whether the trial Judge afforded fair hearing to the Appellant when he gave judgment in favour of the Respondent and granted his reliefs.
(3) Whether the petition of the Respondent was proved before the trial Court to warrant judgment given in Respondent’s favour.

R. N. Ngwu Esq., of Counsel settled the Respondent’s brief which was filed on 12/2/2021. Counsel formulated five (5) issues as calling for determination. Namely:
1. Whether the appellant (in the face of Report of service of the Bailiff of the lower Court contained at page 29 of the record of appeal, an order for substituted service contained at page 30 of the record of appeal, affidavit of service contained at page 31 of the record of appeal, EMS postal dispatch receipt contained at page 32 of the record of appeal, and text message request contained at page 200 of the record of appeal can be said not to have been given fair hearing. This issue relates to ground one of the appellant’s Notice of Appeal.
2. Whether a divorce proceeding commenced by petition as provided by the Matrimonial Act can be said to be incompetent, and if so, whether the appellant can raise the issue of competence of a Court processes (the petition) without obtaining leave of the Court. (This being a fresh issue) This relates to ground two of the appellant Notice of Appeal.
3. Whether the respondent is not entitled at law to be granted the reliefs he sought before the trial Court: (dissolution of the marriage of the respondent, custody of his children and ownership of his personal property) and if so, whether the trial Court erred in law to have granted the respondent the reliefs sought upon the evidence(s) of the respondent. This relates to ground three of the Notice of Appeal.
4. Whether grounds of appeal and the issues thereto can be framed from obiter dictum contained in a judgment and if so whether a trial Court which conducted a trial proceeding was not at liberty under our jurisprudence to draw inferences and make conclusions from the evidence(s) and submission presented before it. This relates to ground four of the Notice of Appeal.
5. Whether a trial Court can set aside its own judgment when the Court has become functious offcio. This relates to ground five of the Notice of Appeal.

The Appellant’s Counsel on the 1st day of March, 2021 filed the appellant’s reply brief of argument where the Appellant tackle the Respondent on the submission made in respect of the issue formulated by the Respondent in her Respondent’s brief of argument.

Arguing the appeal based on the issues formulated, the Appellant’s Counsel in respect of issue 1 submitted that in filing the petition before the trial Court, the Respondent did not comply with the provision of Section 32(1) of the Matrimonial Act as laid down under Order IX Rule 3(1) of the Matrimonial Causes Rule. Section 32 of the Matrimonial Act requires that where a petition or dissolution of marriage is founded on allegation of adultery with a specified person, that person shall except as provided by the rules of Court, be made a party to the proceedings, whether or not the dissolution is sought on the basis of that allegation or not.

The Appellant drew our attention to page 8 paragraphs a, b, c and d, page 9 paragraphs b and c of the record where the Respondent made series of allegations of adultery concerning the Appellant with an allegedly known lover. But that lover was never joined as a party in the petition. Contrary to the requirement of the law which has made the joinder mandatory and condition precedent for filing of the petition. This failure has made the petition incompetent. See Ebe V. Ebe (2004) 3 NWLR (Pt. 860) 215.

The only exceptions provided under the Matrimonial Causes Rules Order IX are:
(1) When the adulterer is dead
(2) When the alleged adulterer is under the age of 14 years.
(3) When the alleged adulterer is an infant under the age of 21 years with whom an incest is committed by either of the parties to the petition. The Respondent did not suggest any of the above conditions to warrant non-joinder of the adulterer. Appellant’s Counsel submits that even where the Appellant was alleged to have committed adultery with an unknown person it shall be 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.

Counsel submits that from the record, it is clear that the case proceeded to trial without any compliance with Order XI Rule 39 of the Matrimonial Causes Rules made pursuant to the Act. Submits apart from the fact that there was no request and certificate filed by the petitioner that the case be set down for trial, there was no compliance by the Respondent with the condition to seek for an order dispensing with the naming of the unidentified adulterer. The Court was in error to have proceeded to hear the petition in the first place. See Ebe V. Ebe (supra) where it was held that this omission or failures:
“Render any proceeding conducted pursuant to the erroneous setting down of the petition for hearing to be invalid.”

The second leg of the argument of the Appellant on the competence of the petition is premised on non-compliance with the provisions of Order V Rule 10(1) of the Matrimonial Causes Rules while states:
“The party who files a pleading shall by an affidavit written on his pleadings and sworn to within twenty-one days before his pleading is filed (a) verify the fact stated in his pleadings of which he has personal knowledge and (b) depose as his belief in the truth of every other fact stated in his pleadings.”

The petition of the Respondent according to the Appellant did not comply with this requirement as there is a separate affidavit attached to the petition. Page 13 of the record of appeal.

Appellant counsel submits that where such an affidavit is filed separately, the Court of appeal held that it renders the petition ‘somewhat incompetent’ in Unegbu V. Unegbu (2004) 11 NWLR (Pt 884) 332 at 363.

By the rule of stare decisis, it is mandatory to consider this petition incompetent for all the above non-compliances.

ISSUE TWO
On this issue, learned Appellant’s Counsel argued that the trial Judge did not ensure that the Appellant was afforded fair hearing when he conducted the proceedings and gave a default judgment in favour of the Respondent, with the grievous and weighty criminal allegations made in the petition the trial Court should have ensured that hearing notice was served on the Appellant. The Counsel cited Shyllon V. Asein (1994) LPELR-3071 SC which deals with the fate of a case decided when one of the parties is not afforded the opportunity to be heard. See also Molokwu V. Mbanefo (2014) 22257 SC.

Learned Counsel submits that the default judgment ought to have been set aside by the trial Court when the Appellant made his application on the ground that the order for substituted service was to the effect that service should be effected though courier using (UPS) but the Respondent instead used EMS in contravention with the order specific order. Order of Court must be obeyed unless it is varied judicially. See Odogwu V. Odogwu. (1992) 2 SCNJ (Pt. 11) 357. He further cited the Supreme Court case which says Bailiff of Court has no power to vary, alter, or modify how order of substituted service will be carried out.

Secondly, the Appellant submits that the trial Judge ought to have ensured that hearing notice was issued and served on the Appellant on the days of the adjournments before the judgment. See Iyoho V. Effiong & Anor (2007) 1580 (SC) where it was held that:
“A party not served with the hearing date of proceedings leading to a judgment or order made against him is entitled ex-debito justitiae to have the proceedings set aside as a nullity.”

Counsel argued that from the records, this judgment was obtained improperly. So it should be set aside.

ISSUE THREE
On this issue, Counsel submits that proceedings in Matrimonial Causes are sui generis governed by the Matrimonial Causes Act and rules enacted specifically to regulate same. Petitioner is required to strictly prove his averments in the petition. See Bakare V. Bakare (2016) LPELR 41344 (CA) submits that in a matrimonial proceedings the petition stands in the position of the statement of claim in a trial based on pleadings. See Aderounmu V. Aderounmu (2003) 2 NWLR (Pt. 803) 1.

Averment in pleadings do not speak for themselves evidences must be led on same in order to give life to the pleadings. Where evidence is not led to support the averments, it is deemed abandoned. Buhari V. Obasanjo (2005) 2 NWLR (Pt. 910) 241.

According to the Appellant’s Counsel, the proceedings of 24th January, 2019 at page 289-290 of the record, no substantial evidence was adduced in support of the petition which contained grievous criminal allegations, extra marital affair, violence and custody of children and settlement of property. Courts only act on evidence placed before it, pleadings do not constitute evidence.

Submits that the trial Judge in his judgment found at page 47 of the record of appeal mainly relied on the bare pleadings of the Respondent in castigating the person of the Appellant.

The learned Appellant’s Counsel submits further that in the case of Mohammed V. Husseini (1998) LPELR 1896 (SC), it was held that a judgment in default is not a judgment on the merit and therefore a Judge is not functus officio on it.

Counsel therefore urge us to resolve this issue in favour of the Appellant.

Responding, the Respondent in his submissions on issues 1 and 2 of his brief of argument, counsel conceded that lack of service goes to the root of proceedings and renders everything done without proper service into a nullity. See United Cement Coy V. Isidor (2016) ALL FWLR (Pt. 844) 2137. But in this case counsel submits that before the learned trial judge assumed jurisdiction to hear the matter he had received the report of the Bailiff of inability to serve personally, then the Court ordered a substituted service which was carried out. Counsel referred to pages 29, 30, 31 and 32 for the report of service. Order for substituted affidavit of service and the EMS postal dispatch, Counsel argued that the Appellant shunned the courier man, Counsel also made reference to some two text messages the Appellant sent to her daughter which shows that she is aware of the proceedings for the dissolution of the marriage that she only decided not to participate in the proceedings, in this circumstance she has no right to complain of denial of fair hearing as she was given every opportunity to participate in the proceedings which she chose not to take advantage of. See Achuzia V. Ogboma (2004) ALL FWLR (Pt. 227) 508 and Ndulue V. Ibeh (2016) ALL FWLR (PT. 822) 1684.

Submits that the Appellant was served as found by the lower Court, she only refused to take part in the proceedings so she can not cry of denial of fair hearing.

Again Counsel submits that there is nowhere in the judgment or ruling of the Court where the issue of competence of the petition non-joinder of the purported adulterer and defectiveness of verifying affidavit was ever made an issue at the lower Court, the issue was not raised either by the Respondent or the Court.

That an Appellant in an appeal must confine himself to the issues raised and decided upon at the trial Court. The Appellant must first seek leave before raising the issue on appeal. See Mrs. Vidah C. Ohochukwu V. Attorney General of Rivers State & Ors (2012) 5 SCM page 226 at 227.

Counsel submits that the ground on this question of competence of the petition is incompetent and should be struck out.

With respect to non-joinder of the adulterer Respondent counsel further argued that Section 32 of the Matrimonial Act cannot be read in isolation to Sections 31 and 85(2) of the Act and other Rules of Court submits that the only inference to be drawn from a community reading of this Section is that it is the discretion of the trial Court to order or not the joinder of the adulterer, where there is the need to do so. And non-joinder can only affect the decision of the Court where there is a monetary claim for damages for adultery.

Submits that the Respondent has no desire to proceed against the adulterer and as such did not join him. And that the Appellant himself did not apply to join the adulterer in the suit even though the adulterer’s photograph has been displayed before the Court so the Appellant cannot come and deny the allegation of adultery.

Counsel prayed this Court to dismiss the appeal.

On his issue three, the Respondent argued that civil matters including divorce petitions are decided on preponderance of evidence. See Agboola V. U. B. A. Plc (2011) ALL FWLR (Pt. 574) 93.

That once evidence led in Court is unchallenged, the trial Court is at liberty to act on it. Here the evidence of the Respondent remained uncontroverted and unchallenged. See Gov. Zamfara State V. Gyalange (2013) ALL FWLR (Pt. 658) 841.

Submits that the trial Court was satisfied with the credibility of the evidence led by the Respondent which duly established his case before the trial Court to entitle him to the reliefs sought. Under Section 15(1) and (2) of the Matrimonial Causes Act a petitioner may seek the dissolution of his marriage on the sole ground that the marriage has broken down irretrievably or by establishing one or more of the factors contained in Sub-section (2).

The trial Court is therefore satisfied that the evidence of given in support of the petition was in consonance with the requirement of the provision of Section 15(1)(2) of the Act. Afterall it is the trial Court that has the primary duty of hearing and evaluation of evidence and ascription of probative value.

On granting custody of children to the Respondent, Respondent’s Counsel submits that, the petition contained unchallenged evidence that the Respondent has been solely responsible for the education, upkeep and welfare of the children of the marriage, that all the children are always with him except when they are back in school to the extent that his first daughter is now a graduate of Ahmadu Bello University, Zaria. He cited Odusote V Odusote (2013) All FWLR (Pt. 668) 888 where it was held that in considering the issue of the custody of children, regard should be had to the interest of the children as education, security and welfare. In this case, their father, the Respondent has well catered for that. So the Court was right in view of the pleading, at pages 10 and 11 of the records. The children are not infants any more. See Nanna V. Nanna (2008) 3 NWLR (Pt. 966).

On the property, it is submitted that for a landed property to qualify. As matrimonial property it must be shown that the property was bought in the joint names of the parties or at least with the title Mr. & Mrs. or that there was substantial financial contribution of the parties in the acquisition of the property. See Amadi V. Nwosu (1992) Legalpadia SC. UJBT 1.

But in this case, right from the onset, the Respondent has asserted his personal ownership to the property. Copious evidence to that effect was pleaded, show the documents of title are in his name. Therefore the legal ownership of the property is vested in him. See Idundun V. Okumagba (1976) 9-10 SC and Aremu V. Chukwu (2011) ALL FWLR (Pt. 598) 902.

Settlement of property does not imply transfer of ownership from one spouse to the other. And that the doctrine of separate properties between spouse is only established and recognized under the law. That each spouse can acquire and own property during the subsistence of a marriage.

Respondent prayed that this appeal be disallowed.

The Respondent’s Counsel submits in his 4th issue that what should form a ground of appeal are real issues in contention not words made as a side comment or orbiter. See Yahaya V Saraki (2012) ALL FWLR (Pt. 656) 458.

That ground 4 of the appellant’s Notice of Appeal challenged an orbiter made by the trial Judge which should not be so, it is wrong to argue that the petitioner’s evidence requires corroboration.

The learned Respondent Counsel submits that after all the allegation of infidelity made against the Appellant was proved because the evidence adduced by the Respondent at the trial was not challenged, which the Court ought to accept and act on it. Folorunsho and Anor V. Shaloub (1994) 3 NWLR (Pt. 333) 413.

That the unchallenged evidence of the Respondent became the proof of the facts alleged by him. There is no rules compelling a party to call a specific number of witnesses before a matter can be said to be proved. See Omonua V. Okpere (1991) 5 NWLR (Pt. 189) 50. Submits that so far as the evidence of the Respondent was given on oath in open Court it remains valid and credible and the trial Court has a duty to act upon it so the trial Court was right at law to have believed the Respondent.

Finally, the Respondent’s Counsel asked “whether a Court can set aside its own judgment when the Court become functus officio”.

Counsel answered by saying that no Court can sit on appeal over its own decision. That the Court having delivered its judgment on the 28th day of February, 2019 in Suit No: HIK/24D/2018, it became functus officio. See Federal Polytechnic Ida V. Onoja (2013) All FWLR (Pt 667) 757.

That the judgment had been partially executed that the Appellant did not come timeously neither was a good reason given for the judgment to be set aside.

On the whole, Counsel argued that the attitude of the Appellant before the trial Court did not deserve any sympholy as will make the trial Court set aside its judgment. Counsel therefore urged this Court to dismiss the appeal.

The Appellant’s reply brief of argument filed on 1st March, 2021 simply adumbrated the Appellant’s brief of argument without raising any substantial point of law.

RESOLUTION OF ISSUES
From the overall circumstance of this appeal, it is obvious that the first concern of the Appellant is the propriety or otherwise of the service on her of the originating process and other necessary notices before the divorce proceedings was conducted and all the Respondent’s reliefs including dissolution of marriage, custody of children and ownership of property were granted against the Appellant in her absence.

Records have shown that proceedings at the trial Court went on ex-parte because attempt at personal service of the petition against the Appellant then Respondent was unsuccessful as the report of the Bailiff at page 29 of the records shows, by reason of which an order was sought and granted on 10th December, 2018 for substituted service to wit by delivering the process on the Appellant. Respondent via courier service (UPS) at the administrative Block, account Department, Yaba Psychiatrist hospital, school of Basic Studies Yaba Lagos.

On the 21st day of December, 2018, Bailiff of High Court, Ikirun Adeniyi Abiola deposed to an affidavit of service showing compliance with the order of Court that the petition had been posted to the person intended see page 31 for the affidavit of service and at page 32 of the records is the EMS postal dispatch receipt. When the Appellant did not enter appearance or filed any process to defend the petition the learned trial Judge proceeded to hear and determine the petition in her absence, the Court had become satisfied that the substituted service on the Appellant/Respondent is good and sufficient the Court holding thus:
“she has the right, as she has done to refuse to respond or rather decline to come to Court. What the law prescribe is that a person should be informed of issues he has in Court. It is a matter of choice whether to defend such or not.”

The law is very trite that the object of service of process, whether personal or substituted, is to give notice to the other party on whom service is to be effected so that he might be aware of, and able to resist if he may that which is sought against him.” See United Nigeria Press Ltd V. Adebanjo (1969) LPELR 25571 (SC).
Personally whereas process of Court must be served on the party concerned except where personal service is not humanly possible in such instances substituted service is usually allowed, and such substituted service if complied with in the manner ordered by the Court it shall be deemed good and sufficient. Only then is the Court competent to assume jurisdiction to hear and determine the matter. See Mobil Nig. Plc V. Ezekiel Shut Pam (2000) 5 NWLR (Pt. 657) p. 506.

There is no doubt that personal service was attempted on the Appellant but according to the Bailiff in his report of service dated 27/11/2018, the Appellant evaded service. This prompted the Respondent as Petitioner then to make an Ex-parte Application for substituted service which was granted by the trial Court on 10th December, 2018 pursuant to which order the Bailiff posted the originating process to the Appellant’s Address in Yaba Lagos vide EMS courier service. Then proceeded to Exhibit, the dispatch receipt from the courier company and then deposed to an affidavit of service evidencing compliance with the order of the Court for substituted service.

It is trite that substituted service can be employed when for any reason a defendant can not be served personally with the process of Court for example when he cannot be traced or when it is obvious that the Defendant is evading service. See Kida V. Ogunmola (2006) LPELR-1690 (SC).
In this case, all that is required to justify granting the order for substituted service has been established. See Mark V Eke (2004) FWLR (Pt. 200) 1455.
It is trite that once leave is obtained and the service complies with the order of the Court such service is unimpeachable the Defendant cannot be heard to complain of lack of fair hearing. See Dickson V. Okoi (2003) 16 NWLR (Pt. 846) 397, Shahimi V. Akinola (1993) 5 NWLR (Pt 294) 434 and Aliyu A. A. V. Kamba (2019) LPELR 47254 CA per Oho JCA.
“It does not matter whether or not the Defendant becomes aware of the proceedings as the applicant is not duly bound to prove this.”
Cited Dickson V. Okoi (supra).

In this case, the learned trial Judge in his judgment (pages 41-49) and pages 260-268 of the records made it quite clear that he was satisfied that the petitioner was served with the petition. As far as this Court is concerned the trial Judge was right in his conclusions that the Appellant was duly served with the petition. Whether she appears to defend the petition or not is quite another thing. With the affidavit of service and evidence of postage. The Court does not need anything more to form its opinion that service of the petition was indeed affected; come to think of it, the best evidence of service of process is the affidavit of service. See Ndayako and Ors V. Dantoro & Ors (2004) LPELR 1968 SC.

This now brings me to whether the use of “EMS” courier service” to serve the Appellant instead of “UPS the courier” as applied and granted by the Court will invalidate the service for non-compliance. In my view using EMS courier service as opposed to “UPS” courier company in conveying the process to the Appellant cannot on its own without more invalidate the act of service. There is no dispute the both EMS and UPS are courier companies, After all the essence of service is to deliver the Court process to the Appellant or party concerned in order to put the party on notice of the proceedings against her. Whether process is served by a Bailiff known as Moses or Joseph or by a courier company known as EMS or UPS so long as the process was served and delivered to the intended recipient, the purpose has been achieved. The mode become secondary. There is in this case substantial compliance with the order of substituted service by “post”. No miscarriage of justice has been occasioned by using “EMS” in place of “UPS” I am therefore unable to agree and or align with the submissions of the Appellant that this has amounted to substantial non-compliance with the order of substituted service. Case of Harry V. Menakaya (2017) LPELR 42363 is quite distinguishable from the circumstance of this case.

I hereby hold that the service of the petition on the Appellant is valid and proper. Notwithstanding that service of the petition is found to be valid and proper it will not cure other fundamental defects that may affect the competence of the petition afortori the jurisdiction of the Court. It is in the light of this state of the law that we shall examine other complains of the petitioner as it relates to non-service of other mandatory notices and non-joinder of the adulterer as a Respondent to the petition in accordance with Section 32 of the Matrimonial Causes Act.

One of the grounds upon which the Respondent founded his petition for the dissolution of the marriage between him and the Appellant is adultery. See page 8 paragraphs a, b, c and d of the records of appeal.

Section 32(1) of the Matrimonial Causes Act requires that where adultery is alleged in any petition for the dissolution of marriage or in an answer to the petition with a specified person it shall be necessary to make such person a party to the proceedings.
Section 32(1) of the Matrimonial Causes Act provides as follows:
“32(1) Where in a petition for a decree of dissolution of marriage or in an answer to such petition, a party to the marriage is alleged to have committed adultery with a specified person, whether or not a decree 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.”
By Order IX Rule 3(1) of the Matrimonial Causes Rules any petition for dissolution of marriage where there is an allegation that the Respondent has committed adultery with a person whose name is unknown, the suit shall not be set down for trial unless the Court has made an order dispensing with the naming of the person.
Going by the provision of the Matrimonial Causes Act and the Matrimonial Causes Rules whenever there is an allegation of adultery in the petition for a dissolution of marriage or an answer thereto it is mandatory to name the adulterer by making him a party to the proceedings in the case of Eigbe V. Eigbe (2012) LPELR 19690.
It was held per Justice S. D. Bage that:
“Joinder of adulterers is a must requirement of the law. Where such adulterers are not joined, the petitioner cannot use any legal process for dissolution of marriage on that ground. The law is already settled that where a statute provide a means which an action must be commenced, legal proceedings cannot be commenced by any other means. A claimant who might have a cause of action looses the right to enforce it by judicial means.”
In this case, the petitioner not only made allegation of adultery against the Appellant but went on to attach to the petition, the photograph of the alleged adulterer, yet he was not joined as a Respondent in the petition. Whereas there is no evidence that the (a) adulterer had died (b) is a minor or (c) an infant. See Order IX Rule (6).
Failure to so join him by the rules is a bar to setting down the petition for trial. When there is no order of Court dispensing with the naming of the adulterer, the Court had no business setting down the petition for hearing at the time it did.

With respect to other notices.

The petition being an undefended one by Order XI Rule 39 the petitioner is required to file a request and a certificate stating the suit is ready for trial before the registrar can set the suit down for hearing. And unless this procedure is fully complied with, the petition cannot and shall not be set down for hearing.
From the records of appeal, as at 24th day of January, 2019 when the petition was heard and the petitioner taken as PW1 in the matter, no request or certificate required by Order XI Rule 39 of the Matrimonial Causes Rules was filed, knowing fully that this petition was not defended. No allowance was made to ensure compliance with the rules; the case went into hearing on the first day it came up in Court, the end result is that the petition was unnecessarily rushed, heard in a hasty manner at the detriment and total disregard to all safeguards and requirements put in place by the law and the rules, especially Order IX Rule 3(1), Order XI Rule 39 of Matrimonial Causes Rule and Section 32(1) Matrimonial Causes Act.
Alas this haste in the manner the trial Court went about the petition involving custody of children and ownership of property, it has unfortunately crashed the petition and the proceedings beyond repairs because the requirement of Section 32 of the Act which compels the joinder of adulterer to the petition and compliance with Order XI Rule 39 of the Matrimonial Causes Rules and certain other mandatory applications for setting down an undefended petition for trial, by their very nature are jurisdictional issues which can be raised at any time and at any level whether at the trial or Appellate level, interestingly by either of the parties to the proceedings or by the Court itself suo moto.

Issue of jurisdiction is never late. In Unilorin V. Adeniran (2007) 6 NWLR (Pt. 1031 498: This Court held:
“It is proper for a party to raise the issue of jurisdiction without obtaining the leave of the Appellate Court. The issue of jurisdiction being fundamental can be raised at any stage of the proceedings without leave of Court.”
See also Makinde V. Ojeyinka (1997) 4 NWLR (Pt. 497) 80.

The above authorities punctures the argument by the Respondent that issues of the non-joinder of adulterer under Section 32(1) of Marriage Causes Act was not raised at the Court of trial. So cannot be raised on appeal. This is absolutely fallacious.

The power of Court to dissolve marriages is one which should be cautiously applied, because such jurisdictions involve status of the parties, the children and indeed families, it is a sacred institution that must be sanctified. Accordingly, public interest and the law demands that marriage bond must not be set aside unless absolutely necessary and unavoidable. There must therefore be “strict proof of the grounds and after a painstaking judicial enquiry”. See Oguntoyinbo V. Oguntoyinbo (2017) LPELR 42174 and Adeparusi V. Adeparusi(2014) LPELR 4111.
This is necessary because divorce proceedings clearly are sui generis with its separate set of rules unlike the normal and ordinary civil proceedings the petitioner is therefore required to strictly prove his averments in the petition irrespective of any admission by the Respondent.

Issue of non-compliance which borders on jurisdiction cannot be regarded as an irregularity. See Ezeabagbulem V. Ezeabagbulem (2019) LPELR 47558.

On whether the trial Court had become functus officio when the application to set aside its default judgment was made.

It is trite that the rule that a Court has become functus officio does not apply to a default judgment. A Court no doubt has the inherent power to set aside its own judgment given in default. See Bello V. INEC and Ors (2010) 2 FWLR (Pt 522) 3606 Supreme Court:
“Where the Court has not pronounced a judgment on merits or by consent such a judgment may be set aside by any trial Court in the judicial division where the judgment was obtained.”
See Ugwu V. Aba (1961) 1 ALL NLR 438.
This also comes with high degree of discretion in that a Court may use its discretion generally, a Court must use its discretion in favour of doing substantial justice. And you cannot do substantial justice without hearing the other side. Therefore refusing to set aside the default judgment on ground of being functus officio by the trial Court is wrong. The default judgment ought to have been set aside to enable the Appellant be heard in answer.

For all that I say above therefore this appeal has merit and it is hereby allowed. The default judgment entered by the trial Court of Osun State Ikirun Dated the 28th day of February, 2019 dissolving the marriage between the Appellant and the Respondent in Suit No: HIK/24D/2018 is hereby set aside along with all other orders therein.

RITA NOSAKHARE PEMU, J.C.A.: I had the privilege of reading in draft the lead judgment just delivered by my brother YUSUF ALHAJI BASHIR, JCA.
I agree with his reasoning and conclusions.
The appeal is allowed by me.

The judgment of Osun State High Court sitting in Ikirun in Suit No. HIK/24D/2018 delivered on the 28th day of February, 2020 is hereby set aside.

HAMMA AKAWU BARKA, J.C.A.: I was obliged with a copy of the judgment just read by my learned brother, YUSUF A. BASHIR JCA in draft form. I find the issues identified for resolutions well-considered and thereby agree with the conclusion arrived at.

Let me however chip in a bit by saying that a judgment in default is not a judgment on the merits, and the Court has the power to set it aside or to vary it, and unless set aside or varied, a default judgment has all the attributes of a valid and enforceable judgment. Justice is the keyword.

In any case, dissolving a marriage carries with it a lot of responsibility. It should be embarked upon only in extreme circumstances. I agree that this appeal be allowed and the decisions of the Osun State High Court in Suit No. HIK/24D/2018 delivered on the 28/2/2020 be set aside and all order therein vacated. I make no order as to cost.