A Procedural Neglect Of A Rule In Commencing Divorce Proceedings In Nigerian Courts By S.O. Giwa Esq. – TheNigerialawyer

Just as the Global Positioning System (GPS) gives navigation
& directions to the route & location so as the Rules are
made to provide support in the administration of justice and to aid
the course of justice in determination of cases in Nigerian
Courts.

It therefore behooves the litigants and their Lawyers to follow
the Rules made to assist the court in its effort to determine
issues or controversies before the court.

Over the years, it is observed that in commencing divorce
proceedings in Nigerian Courts by many litigants, lawyers file the
petition with the verifying affidavit on the same day.

It is this observation that calls for a beaming search light on
the Order V rule 10 of the Matrimonial Causes Rules to find out the
propriety or otherwise of such ubiquitous practice by many lawyers
in Nigeria.

Before scrutinizing the provision of Order V rule 10 of the
Matrimonial Causes Rules, it is pertinently important to say here
that Order V rule 10 of Matrimonial Causes Rules, 1983 in force
provides conditions precedent which the litigant who is desirous of
commencing divorce proceedings in Court must fulfill for him/her to
be legally empowered to commence the said divorce proceedings and
compliance with the provision of Order V rule 10 of Matrimonial
Causes Rules is mandatory.  What then is the provision of
Order V rule 10 of the Matrimonial Causes Rules?

It is the provision of Order V rule 10 of Matrimonial Causes
Rules that:

(1)         A
petitioner shall, by an affidavit written on his petition
        and sworn to before his
petition is filed-

1. a) verify the facts stated in his petition of which
   he
                
           has personal knowledge;
   and
2. b) depose as to his belief in the truth of every
   other
                 
           fact stated in his
   petition.

(2) Where, for the purpose of complying with
sub-rule (1) of    this
        rule it is necessary for
a petitioner to verify the
        doing of, or the failure
to do, an act within, throughout
       or for a period ending on the
day immediately preceding       the date
of his petition, it is       
sufficient compliance with    that sub-rule if the
petitioner verifies the doing of, or the
       failure to do, the act within,
throughout or for, as the      case may be, a
period ending on the day immediately
        before the swearing of
his affidavit.

(3) Where, for the purpose of complying with
sub-rule (1) of    this
        rule, it is necessary
for a petitioner to verify that a   certain circumstance
existed at the date of his petition,
       it is sufficient compliance
with that sub-rule if the    petitioner verifies the
existence of the circumstance at the date of swearing his
affidavit.       

Considering the provision of Order V rule 10 (1) of the
Matrimonial Causes Rules, 1983 in the case of Unegbu v.
Unegbu (2004) 11 NWLR (Part 884)332 @ 357 paragraphs
A-C, Justice Mahmud Mohammed J.C.A in his lead
judgment sieved out duties of a petitioner from provision of Order
V rule 10 (1) of the Matrimonial Causes Rules, 1983 and held
thus:

  ‘Now it is quite clear from the rule that the
duties it imposes   on a petitioner are as
follows:

• a petitioner shall write an affidavit on his
  petition;
• the affidavit shall be sworn to before his petition
  is filed;
• in the affidavit, the petitioner shall verify the
  facts stated in his affidavit of which he has personal knowledge;
  and
• in that affidavit the petitioner shall depose as to
  his belief in the truth of every other fact stated in the
  petition.

All those duties imposed on a petitioner by rule 10
(1)of Order V of the Matrimonial Causes Rules 1983 to my mind are
mandatory.’ The underline is the writer’s for
emphasis.

Also, Justice Mohammed Ladan Tsamiya J.C.A in his lead judgment
in the case of Umeakuana v. Umeakuana (2009) 3 NWLR
(Part 1129) [email protected]^[1]
paragraphs B-E while considering the provision of
Order V rule 10 (1) of the Matrimonial Causes Rules, 1983 laid
credence to the reasoning of Justice Mahmud Mohammed in
Unegbu v. Unegbu (supra) and held
thus:

‘In this case, it appears to me that the word
‘‘shall’’ as used in the rule imposes obligation on petitioner to
do or to comply with what is imposed in the rule. The word
therefore, as held in Unegbu v. Unegbu (supra) had been used in
mandatory sense requiring strict obedience and fulfillment.
Meaning, failure to do exactly what is required by the rule could
be fatal to the divorce petition. A careful perusal of the said
rule will reveal that the duties imposed on a petition are as
follows:

(1) A petitioner shall write an affidavit on his
petition for       
divorce;

(2) The affidavit shall be sworn to before his
petition is filed;

(3) In the affidavit, the petitioner shall verify
the facts stated  in his affidavit of which he has personal
knowledge; and

(4) In that affidavit, the petitioner shall depose
as to his belief in the truth of every other fact stated in the
petition.

The above duties imposed on a petitioner to my
understanding are mandatory.’ The underline is the
writer’s for emphasis.

It is crystal clear from the underlined duty in the above cited
cases that a petitioner is duty bound to swear to an affidavit to
verify the facts stated in the petition of which the petitioner has
personal knowledge as required by the said rule and failure of a
petitioner to swear to such affidavit before filing his petition is
fundamentally fatal to his petition.

It might seem absurd or irrational to some readers that a
petitioner who has not filed his petition must swear to affidavit
verifying facts in the petition before filing his petition.

Clearing the air on such conception and thought, it is important
to give the judicial definition of the word ‘verify’ used in Order
V rule 10(1) of the Matrimonial Causes Rules, 1983.

In the case of Unegbu v. Unegbu(supra)@356
paragraphs D-E, Justice Mahmud Mohammed J.C.A while
considering the provision of Order V rule 10(1) of the Matrimonial
Causes Rules, 1983 in force held thus:

‘‘The word ‘verify’ as used in the rule is defined
in Black’s Law Dictionary Fifth Edition at page 1400 as meaning-‘To
confirm or substantiate by oath or affidavit. The rule is
definitely imposing a duty on a petition filing a petition on what
he should do to the petition before filing the same.’’
   

Flowing from the above quoted holding of the court vis-à-vis
definition of the word ‘verify’ is the deductible fact that a
petitioner must have first written his petition and discharged his
duty of swearing to an affidavit verifying the facts in the
petition on him before presenting same for filing.

It is fundamentally necessary to submit that a petitioner has no
right of choosing which of the duties imposed on him by the
provision of Order V rule 10(1) of the Matrimonial Causes Rules to
be performed and which one he/she is to neglect or refuse to
perform. Fortifying this submission is the holding of Justice
Mohammed Ladan Tsamiya J.C.A in Umeakuana v. Umeakuana
(supra) at page 613 paragraph A-C wherein the
Lordship held thus:

‘The second requirement the affidavit of a
petitioner must satisfy is that, it shall be sworn to by the
petitioner before filing his petition. Looking at the record
(exh.‘‘A’’) of this appeal at page 8 it is quite clear that the
petition which was dated 10/2/2000 did not show when the said
affidavit was filed. It also shows that the affidavit was deposed
to and signed by the Commissioner for Oaths on the same date the
petition was dated i.e. 10/2/2000. On the face of the affidavit, it
is plain that having been sworn to on the same date the petition
was dated but not the date of filing the petition, can it be said
to have satisfied the requirement of the rule with regard to the
time of filing the petition? My answer is no. This is because Order
V rule 9 (1) provides that a petition shall bear date of the day on
which it is filed.’  The underlines are the
writer’s for emphasis.

From the foregoing, it is the writer’s stand that swearing to
verifying affidavit as required by the Matrimonial Causes Rules on
the day the petition is filed is a gross non-compliance with the
provision of Order V rule 10(1) of the Rules and failure to have
the verifying affidavit sworn to before filing the petition renders
the said petition incompetent and oust the court of its
jurisdiction to determine such petition.

It must be said that the petitioner’s duty to have verifying
affidavit on his/her petition for divorce proceedings does not take
away the petitioner’s duty of having verifying affidavit sworn to
before his/her petition is filed. The language of the rule is
imperative, quite clear and plain, and therefore must be given its
ordinary meaning.

It must be further noted that having the verifying affidavit
sworn to on the date the petition is filed depicts that the
verifying affidavit supports the petition in the same way as an
affidavit in support of a motion. Hence, the emphasis in the rule
10(1) of Order V of the Matrimonial Causes Rules is meant to stress
the role of the affidavit required under the rule as a verifying
affidavit to the petition rather than an affidavit in support of
the petition. This submission is fortified by the decision of the
court in Unegbu v. Unegbu (supra) @ 356 paragraphs
A-D

It must be further noted that prior to the decision of the court
in Unegbu v. Unegbu (supra), there was no
decision of the Supreme Court or Court of Appeal on the
interpretation and application of Order V rule 10(1) of the
Matrimonial Causes Rules, 1983 in force and all the pre-decided
cases before the enactment of the Matrimonial Causes Rules, 1983
were decided under the English Matrimonial Causes Rules 1957 by
virtue of the provisions of the various High Court Laws. For
instance, the provision of the High Court Law that was applicable
then in the Eastern States which the writer laid his hand on had a
provision in section 16 that vested jurisdiction in the High Court
as regards practice and procedure to be exercised in the manner
provided by the High Court Law and any other written law and in
default thereof, in substantial conformity with the law and
practice obtaining in England then for the High Court of
Justice.

Beaming further search light on the relevant rule in England
which Nigerian Courts had resorted to in deciding divorce cases
before the enactment of the Matrimonial Causes Rules, 1983 reveals
the rule 6(1) and (3) which reads:

‘6(1) Every petition shall be supported by an
affidavit by the        
petitioner verifying the facts of which he has personal
        knowledge and deposing
as to his belief in the truth of     the other
facts.

(3)    The affidavit in support of the
petition shall be contained        in
the same document as the petition and shall follow at
     the foot or end thereof’

It is safe to conclude that it is the above quoted provisions
that form springboard for having verifying affidavit sworn to on
the date the petition is filed and also having the provision
of  the phrase ‘A petitioner shall, by an affidavit written on
his petition’ in  Order V rule 10(1) of Matrimonial Causes
Rules, 1983 interpreted to mean that the verifying affidavit must
be written on the same page with the petition which many lawyers
often explore to raise objection against any petition which has its
verifying affidavit on the different page of the petition.

It is hereby recommended that since the Matrimonial Causes Rules
1983 is the extant rules regulating the practice and procedure
applicable in Nigerian Courts for divorce proceedings and other
matrimonial disputes, strict compliance with the provisions therein
must be accorded to the Rules. Thus, the Matrimonial Causes Rules
are not made for fun but to be obeyed and it must be obeyed.