CORAM

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HON. JUSTICE T. O. AWOTOTE . JUSTICE, COURT OF APPEAL

HON. JUSTICE M. DANJUMA .JUSTICE, COURT OF APPEAL

HON. JUSTICE B. F. ZUBAIRU . JUSTICE, COURT OF APPEAL

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PARTIES

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MR. SCOTT KOMEME NOTOMA

APPELLANTS 

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MRS. GRACE NOTOMA

RESPONDENTS 

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AREA(S) OF LAW

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MATRIMONIAL CAUSES, CIVIL PROCEDURE, PRACTICE AND PROCEDURE, PRELIMINARY OBJECTIONS, APPELLATE PROCEDURE

 

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SUMMARY OF FACTS

The Appellant challenged the competence of a petition for the dissolution of marriage through a preliminary objection, arguing that there was no valid verifying affidavit accompanying the petition as required by Order 5 Rule 10(1) of the Matrimonial Causes Rules 1983. The trial court dismissed the preliminary objection, holding that there was no separating document between the petition and the verifying affidavit. The Appellant appealed this ruling, contending that the court erred in dismissing the preliminary objection.

 

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HELD

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1. The appeal was dismissed.

2. The ruling of the High Court of Justice Ogun State delivered by Hon. Justice O. S. Olusanya was affirmed.

3. No order as to costs.

 

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ISSUES

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1. Whether the Lower Court was right in law to have dismissed the Appellant’s Notice of Preliminary Objection dated April 4, 2018, on the sole ground that there was no separation by any other documents between the petition for a Decree of Dissolution of Marriage and the verifying affidavit, and that the said processes flowed continuously?

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RATIONES DECIDENDI

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CONSIDERATION OF PRELIMINARY OBJECTIONS:

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“An appellate court should first consider a Preliminary Objection raised during an appeal and express its opinion on whether it agrees or not, because a successful Preliminary Objection may have the effect of disposing of the appeal.” – Per Mohammed Danjuma, JCA

 

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NATURE OF MATRIMONIAL CAUSES:

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“The Matrimonial Causes are sui generis and are not governed by rules of pleading but by the Matrimonial Causes Act and Rules specifically enacted to regulate them.” – Per Mohammed Danjuma, JCA

 

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COMPLIANCE WITH MATRIMONIAL CAUSES RULES:

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“The provisions are to be ascribed their plain and ordinary meaning in identifying or determining their object or intention. The use of the word ‘shall’ ordinarily indicates that the provisions are mandatory because the word is used to express a command or directive that does not admit of discretion.” – Per Mohammed Danjuma, JCA

 

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VERIFICATION REQUIREMENT:

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“The primary objective of the provisions is that a petitioner should make a solemn oath that all the facts set out in the petition are, to his knowledge and belief, true and correct. As long as the affidavit was sworn to before the petition was filed and accompanied the petition, the provisions would have been substantially complied with.” – Per Mohammed Danjuma, JCA

 

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EFFECT OF NON-COMPLIANCE:

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“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 the proceedings void unless the court so directs.” – Per Mohammed Danjuma, JCA

 

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SUBSTANTIAL COMPLIANCE:

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“Strict compliance with the forms in the First Schedule is not necessary; substantial compliance, as the circumstances of a particular case allow, is sufficient.” – Per Mohammed Danjuma, JCA

 

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LEAVE TO APPEAL – LAW ALONE:

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“Leave of court is not required to appeal against any decision of the High Court, whether final or interlocutory, when the ground of appeal involves a question of law alone.” – Per Mohammed Danjuma, JCA

 

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NATURE OF COURT RULES:

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“Rules of Court are rules of procedure; they do not, by themselves, confer jurisdiction. They merely regulate the exercise of jurisdiction conferred. In other words, a rule of court cannot confer jurisdiction, as such a rule regulates the practice of the court.” – Per Mohammed Danjuma, JCA

 

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PURPOSE OF SERVICE:

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“The object of endorsing the address of the Respondent on the Notice of Appeal and the service of processes, 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 can, that which is sought against him.” – Per Mohammed Danjuma, JCA

 

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VERIFICATION REQUIREMENT – NATURE:

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“The non-compliance with Order V Rule 10(1) of the Matrimonial Causes Rules is not a condition precedent, as it merely directs the verification of the facts contained in a petition.” – Per Mohammed Danjuma, JCA

 

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SUBSTANTIAL JUSTICE:

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“Their overall aim is to ensure that substantial and practical justice is done in the cases presented by the parties, devoid of technicalities that relate only to the form and not to the substance of the case.” – Per Mohammed Danjuma, JCA

 

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GROUND OF LAW – DETERMINATION:

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“It is the alleged misconception or misapplication of the law to the established or obvious facts that this appeal is complaining against, and this makes the ground of appeal, from its construction, one of law and not of fact or mixed law and fact.” – Per Mohammed Danjuma, JCA

 

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SERVICE OF NOTICE:

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“If the Respondent had not been informed, he would not have reacted to the Notice of Appeal, and even this Preliminary Objection would not have arison.” – Per Mohammed Danjuma, JCA

 

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CASES CITED

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STATUTES REFERRED TO

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1. Constitution of the Federal Republic of Nigeria, 1999 (as amended)

2. Matrimonial Causes Act

3. Matrimonial Causes Rules, 1983

4. Court of Appeal Rules, 2021

5. Court of Appeal Act, 2004

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