In The Court of Appeal of Nigeria
On Wednesday, the 22nd day of June, 2016
ACTION: WHAT DETERMINES THE VENUE FOR INITIATING AN ACTION
I agree completely with the learned Counsel for the Appellants submission while citing the dictum of Akpabio, JCA in Adegoshoye V. Adegoroye (1) SMC (Selected Matrimonial Causes) at page 41; that a forum in which both the Petitioner and the Defendant were resident was to be preferred to another venue in which none of the parties was resident. Even under the High Court of Imo State (Civil Procedure) Rules, the forum where the Petition was initiated; Order 2 thereof which governs place of institution/of Trial of Suits by Rules 3 and 4 categorically stipulate that:
All suits for specific performance, or upon breach of any contract, may be commenced and determined in the judicial Division in which such contract ought to have been performed or in which the Defendant resides or carries out business.
“4. (1) All other Suits may be commenced and determined in the judicial Division in which the Defendant resides or carries on business or in which the cause of action arose.
Therefore, barring the provisions of Section 2(1) of the Matrimonial Causes Act which is to the effect that, subject to the Act, a person may institute a Matrimonial Cause under the Act in the High Court of any State of the Federation; and for that purpose the High Court of each State of the Federation shall have jurisdiction to hear and determine Matrimonial Causes instituted under the Act; the Petition ordinarily ought not have been initiated/instituted in Owerri rather than Lagos where both the Petitioner and Respondent reside or where the Defendant resides and does business.
“With the provisions of Section 2 of the Matrimonial Causes Act, the Petitioner had the right any way to institute the action in Owerri and it would appear that the above Section has also whittled down the provisions of Order 96 and 97 of the Sheriffs and Civil Process Rules, 2004 on the mandatory provision of leave and endorsement of a writ for service outside a State jurisdiction and therefore the Writ of Summons/Notice of Petition and other originating processes needed no endorsement for service on the Appellant since by Section 2(3) of the Matrimonial Causes Act, 2004; ?For the avoidance of doubt, it is hereby declared that a person domiciled in any State of the Federation is domiciled in Nigeria for the purposes of this Act and may institute proceedings under this Act in the High Court of any State whether or not he is domiciled in that particular State. PER IGNATIUS IGWE AGUBE, J.C.A.
PROCEDURE: SERVICE OF COURT PROCESS; EFFECT OF NON-SERVICE OF COURT PROCESS
In the very recent decision by the Supreme Court in Ihedioha V. Okorocha (2016) 1 NWLR (Pt. 1492) 147 at 176 – 177 paras. H – D; 203 paras A – D; per Okoro JSC placing reliance on Emiskip V. Exquisite Industries (Nig.) Ltd. (2003) 4 NWLR (Pt. 809) 88; Skenconsult (Nig.) Ltd V. Ukey (1981) 1 SC 6; Craig V. Kanseen (1943) 1 QB 256 and Oke V. Aiyedun (1986) 2 NWLR (Pt. 23) 58 as well as P.P.A. V. INEC (2012), 13 NWLR (Pt. 1317) 215 S.C. at 237; per Ngwuta, JSC; S.S. (Nig.) Ltd. V. A.S. (Nig.) Ltd (2011) 4 NWLR (pt. 1238) 596 at 620 paras. B – D; restated the trite state of our law that service of originating process is a precondition to the exercise of jurisdiction by the Court. Where therefore there is non service or there is a procedural fault in service, the subsequent proceedings are a nullity ab initio. According to the Learned Law Lord:
“This is based on the principle of law that a party shall know or be aware that there is a Suit against him so that he can prepare a defence. If after service he does not put up a defence, the law will presume and rightly too, that he has no defence. But where a Defendant is not aware of a pending litigation because he was not served, the proceedings held outside him will be null and void.
Following the above dictum of the erudite Law Lord and having held earlier that the Appellant was not served with the originating processes before the case was heard and determined behind her and Judgment delivered against her, the failure to put the Appellant on Notice just as in the Ihedioha V. Okorochas case supra, robbed the trial Court/Judge of the requisite jurisdiction to entertain the petition. See also CBN v. Inter Stella Communications Ltd.(2015) 8 NWLR (Pt.1462) 456 per Abba-Aji, JCA. PER IGNATIUS IGWE AGUBE, J.C.A.
JUDGMENT: CIRCUMSTANCES THAT CAN VITIATE A JUDGMENT
By law, fraud and misrepresentation vitiate any judgment obtained by that process. The same situation applies, where a party was not served or duly served with the processes that culminated in the judgment, as no judge has jurisdiction to give judgment against any party, who was not served with processes entertained by the Court, and so was not heard. See Kayode & Anor v. Abdulfatai (2012) 33 WRN 145, Skenconsult Nig. Ltd v. Ukey (1981) 1 SC 6; ACB Plc vs. Losada Nig. Ltd (1999) SCNJ 209; Mark vs. Eke (2004) 1 SCNJ 243 (2004) NWLR (Pt.865) 54. PER ITA GEORGE MBABA, J.C.A.
IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
FREDERICK OZIAKPONO OHO Justice of The Court of Appeal of Nigeria
AYEVERHUVWU ODUVESIRI VIVI IBRU-STANKOV Appellant(s)
ALEKSANDAR STANKOV Respondent(s)
IGNATIUS IGWE AGUBE, J.C.A.(Delivering the Leading Judgment): By a Notice of Petition and Petition For Decree of Dissolution of Marriage dated and filed on the 29th day of March, 2011 at the Owerri Division of the High Court Justice, Imo State and addressed to Mrs. Ayeverhuvwu Oduvesiri Vivi Ibru-Stankov of 2/4 Mosley Road, Block BPH-7 Ikoyi Lagos, Aleksandar Stankov of the same address (the Petitioner) sought for the dissolution of the marriage between the Petitioner and the Respondent (Ayeverhuvwu Oduvesiri Vivi Ibru-Stankov) for that the ground upon which the Court would be asked to find that the marriage had broken irretrievably is:
(a) That since the marriage, the Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with her.
The Petition gave the history of the marriage and the surname of the Respondent before the marriage as Ibru and that the couple were married at Our Saviour’s Church, Lagos, on the 8th July, 2006 and further that whereas, the Petitioner was born in Serbia on the 3rd of October, 1974; the Respondent was born in London, United Kingdom on the
12th of September, 1974.
On the grounds for dissolution of the marriage as advanced by the Petitioner, he stated at page 4 of the Records as follows:
The Respondent is always cold and moody each time she sees the Petitioner and when the Petitioner attempts to relate to her, she charges aggressively on the Petitioner.
The Respondent is very secretive and does not want the Petitioner to know about her dealings in and outside their matrimonial home. For instance, sometime in September/October 2009 during her family business-Oceanic Bank Probe by Central Bank of Nigeria, the Petitioner was shocked over huge sum of money found in the Respondents Bank Account. The Petitioner was shocked to the marrows when he discovered that the Respondent had such huge sums and properties without his (Petitioner?s) knowledge.
The Respondent has currently instigated her maiden family (Ibru) to unnecessarily interfere in the running of the Petitioner’s family to the chagrin of the Petitioner.
The Respondent being in property development management is always busy with her business living the care of their three children in the hands of the Petitioner’s mother.
The Respondent is always raising her voice on the Petitioner’s mother.
There is serious lack of trust, love and affection existing between the Petitioner and Respondent which have equally affected their performance conjugal rights on each other.
The Petitioner as a result of the fact stated in paragraph (g) above does not want to commit adultery.
On whether there was condonation, Connivance and Collusion with/at the Grounds as above stated, the Petitioner in paragraph 8 of the Petition pleaded that he had not condoned or connived at the grounds specified above, and is not guilty of collusion in presenting this Petition.
In paragraph 9 thereof captioned ARRANGEMENT FOR THE CHILDREN:, the Petitioner pleaded that he had made adequate arrangements for the children as Mila who was then in Nursery 3 at Cocoon Nursery School will continue with her education thereat. He also averred that he had the means and resources to train her up to University level and will encourage her to obtain Higher Degrees as she is willing to do. The same also goes with Michael who is in Nursery 1 at Kids Island Nursery School while Naomi-Rose the third child of the marriage would also have the same educational opportunities like her elder ones. The Petitioner also averred that he lived in a five Bedroom Duplex in an environment and neighbourhood that is well suited for bringing up the children as all the rooms are air conditioned and furnished to taste.
He also described himself as good Christian with good moral up bringing which he would impact on the children apart from having a retired mother and maids who will take care of all the domestic needs of the children as the Respondent is a very busy Business Woman and has no time to take care of the children as would be done by the Petitioner who also has a driver to assist if the need arises.
As for the Orders/RELIEFS sought; the Petitioner stated them as:
A Decree of Dissolution of the marriage contracted between the Petitioner and the Respondent on the 8th of July, 2006 at Our Saviour’s Church, Lagos on the grounds that the same has broken down irretrievably .
Custody of the children of the marriage namely: MILA KESIENA, MICHAEL ALEKSANDAR and NAOMI ROSE OMO?ESERI STANKOV.
In the verifying Affidavit of four paragraphs in support of the Petition also dated and filed on the 29th day of March, 2001, the Petitioner deposed to the facts that he was the Petitioner in the suit, that he verified the facts stated in his petition by virtue of his personal knowledge of same; that the statement set forth in paragraphs 1 ? 9 of his Petition are true and correct to the best of his knowledge, information and belief, and that he made the oath in good faith believing same to be true and correct and in accordance with the Oaths and Affirmation Act, 1990.
At page 6 of the Records, the Marriage Certificate pleaded by the Petitioner is Exhibited. It would be recalled that the Notice of Petition and other Originated Processes were accompanied by a Motion Exparte brought pursuant to Order VI Rule 7 of the Matrimonial Causes Rules for an Order granting the Petitioner leave to serve the Respondent with all the processes in the suit by pasting same on the Respondent’s gate at 2/4 Mosley Road, Block BPH-7, IKoyi, Lagos State and for any other order(s) as the Court might deem fit to make in the circumstances of the case. There was also in company of the Petition a CERTIFICATE RELATING TO RECONCILIATION deposed to by D.O. Nosike, Esq also dated and filed the same 29th March, 2011 to the effect that he (Learned Counsel) for the Respondent had brought to the attention of the Petitioner, the provisions of the Matrimonial Causes Act relating to reconciliation of the parties to a marriage and that the approved guidance organizations reasonably available to assist in effecting reconciliation between the Petitioner and Respondent and the possibility of a reconciliation between the Petitioner and Respondent being effective either with or without assistance of such an organization. A similar Certificate can also be found at page 10 of the Records dated and filed on 26th of March, 2011. See pages 7 -9 of the Records.
The order for substituted service as made by the Court below per Hon. Justice Ngozi Opara, on the 18th day of April, 2011 can be found at pages 12 and 13 while the Affidavit of substituted service can be found at page 14 of the Records.
At page 16 of the Records the Petitioner through his counsel filed a Request to set down the suit to be heard as undefended dated 27th May, 2011 while the Hearing Notice to that effect sworn to on the 3rd June, 2011 can be found at page 17 of the Records. Subsequently, the Learned Counsel for the Petitioner by a Motion dated and filed on the 11th July, 2011 brought pursuant to Order VIII Rules 1(i) & 3(2)(b) of the Matrimonial Causes Rules seeking for the addition of new sub-paragraph i, j. k, l, m, n and o immediately after sub-paragraph h of paragraph 7 of the Proposed Amended Notice of Petition; and to deem the Proposed Amended Notice of Petition as properly filed and served the filing fees having been paid. The Motion which was supported by an Affidavit of seven(7) paragraphs to which the Notice of petition and Amended petition, Verifying, Affidavit, the parties Marriage Certificate, Certificate Relating To Reconciliation were annexed. See pages 22 to 37 of the Records.
The additional Grounds as encapsulated in paragraph 7(i ? 0) as stated in page 32 of the Records of the Amended petition are as follows:
(i) the Respondent is in the habit of taking narcotics such as Indian hemp at home even in the presence of the children of the marriage despite the attempts of the Petitioner to prevent her from smoking Indian hemp.
(j) The addiction of the Respondent to Indian hemp often makes her momentarily insane which as a result makes her display erratic and destructive behavior towards the Petitioner and other members of the family. For instance, in some occasions, the Respondent had deliberately and without any justifiable reasons locked the Petitioner out of their matrimonial home for several hours at night after a long day at work.
(k) The Respondent’s unpredictable behavior occasioned by hallucinogenic drug use has left both the Petitioner and children in perpetual fears as she beats the children occasionally. This was one of the reasons why the Petitioner’s mother voluntarily retired from her well paid job in Serbia to come and take care of the children of the marriage.
(l) It is this erratic and unpredictable behavior of the Respondent that can be best described as the reason why the Respondent without the consent and knowledge of the Petitioner went and abducted their children from School and flew to an unknown destination which after investigation was later discovered to be London.
The Respondent has bluntly refused the efforts of Petitioner and other members of the family to seek psychiatric helps.
The Respondent when under the influence of Indian Hemp depresses and embarrasses the Petitioner.
The Petitioner does not want his children to be brought up in the present life and style of the Respondent.
On the 25th day of July, 2011 following the Application of the Petitioner for the suit to be heard as undefended, the case was set down for hearing and the Petitioner who was present along with his Counsel in the absence of the Respondent and her Counsel, was recalled and re-sworn and he testified at the end of which he was not cross-examined. The Learned Counsel for the Appellant announced the closure of the case for the Appellant and Counsel subsequently addressed the Court and urged that under Sections 15 and 16 of the Matrimonial Causes Act, the Court below should grant the Petitioner’s Petition. The Learned Trial Judge therefore in his Judgment after reviewing the history of the case and the fact that he granted the order for substituted service and had seen in the Court?s file an affidavit of service sworn to by one Ojo Adewuz a Sheriff of the High Court Lagos that on the 19th day of April, 2011 at 3.40pm, the Respondent was served as ordered (see page 39 of the Records).
The Learned Trial Judge at page 40 of the Records, observed that by a Motion on Notice served by one Owoseni Oluwatimilehin a Sheriff of High Court, Lagos, as well whereby the Petitioner was granted leave to amend his Petition which was served on the Respondent on 14th July, 2011 at 5.20pm but that the Respondent did not care to show up to defend the suit. The Learned Trial Judge then remarked:
This Court cannot wait indefinitely for the Respondent to appear. As the Latin maxim goes-?Expedi Recipublicae ut Finis sit Litium?- It is the advantage of the State that there shall be an end of Suits, it is for the public good that actions are brought to a close. Drawing support from the above, I shall not hesitate to bring this Suit to an end. This petition is predicated on Sections 15 and 16 of the Matrimonial Cause Act. Section 15(1) States:-
?That since marriage the Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with the Respondent. Section 16(1)(b) since the marriage the Respondent has, for a period of not less than two years ?
(ii) Habitually been intoxicated by reason of taking or using to excess any sedative, narcotic or stimulating drug or preparation.?
It is in evidence that the Respondent has behaved badly in such a way that the Petitioner cannot reasonably be expected to continue living with her. Moreover, it is also in evidence that she is an Indian Hemp smoker ? a narcotic for that purpose. All these were given in evidence but unfortunately, the respondent chose to be absent despite being (sic) put up her defence. I have no other option to act on the evidence of the petition.?
At page 41, he concluded thus:
In the final analysis, it is my view and I hold same strongly that the marriage between the parties is dead and to be given a decent burial. I make the orders viz:
i. The marriage between the parties entered on the 8th of July, 2006 at Our Saviour?s Church, Lagos, Nigeria is hereby dissolved on the ground that it has irretrievably broken down.
ii. I equally order that Custody of the three issues of the said marriage viz: MILA KESIENA, MICHAEL ALEKSANDAR AND NAOMI-ROSE OMO’ESERI STANKOV be and is hereby granted the Petitioner with a rider that the Respondent is to be given access to them at reasonable times e.g weekends and public holidays. I make no order as to costs.
By a motion dated the 27th day of October, 2011 and filed on the 28th day of October, 2011, the Respondent pursuant to Order 10 Rule 11 and Order 39 Rules 1 and 2 of the High Court of Imo State (Civil Procedure) Rules, 2008, the Respondent in the Lower Court sought for the following Orders:
(a) An Order for leave extending time within which the Respondent/Applicant will apply to the Honourable Court for an Order setting aside the default judgment of the High Court of Imo State Holden at Owerri delivered by Hon. Justice Ngozi Opara on Monday the 25th day of July, 2011.
(b) An Order setting aside the judgment of the High Court of Imo State, Holden at Owerri delivered by Hon. Justice Ngozi Opara on Monday the 25th day of July, 2011 as same was obtained by the Petitioner by fraud.
(c) An Order setting aside the entire proceedings of the Court up to and including those of 20th day of July, 2011 as were conducted with deliberate misrepresentation.
(d) Any Other Order(s) the Honourable Court may deem fit to make in the circumstance.
Accompanying the Motion was an Affidavit of twenty paragraph deposed to by one Daniel Udeh a Legal Practitioner in the Law Chambers of Oraegbunam Anieto & Co, of No. 9 Ozalla Road, Onitsha representing the Respondent to which Exhibits AOV, and AOV2 were annexed. Also in support of the Motion was a Written Address settled by Tagbo Chuba Anieto, Esq also dated 27th day of October, 2011 but filed on the 28th October, 2011. Upon being served, the Petitioner?s Learned Counsel filed the Petitioner?s/Judgment-Creditor/Respondent?s Address in response to the Respondent/Applicant?s Address who also upon receipt of the Petitioner/Judgment-Creditor/Respondent?s Address filed a Reply on Points of Law.
The Learned Trial Judge after hearing the learned Counsel for the parties on their written Addresses, in another Judgment delivered on the 8th day of December 2011 (see pages 70 ? 82 of the Records), held at page 82 thus:
In the face of the above (that is evidence by the Petitioner that he had made proper arrangements in all circumstances for the welfare of the children of marriage who were all below the age of 16 and indeed were all in Nursery Schools), who is in doubt that the Court’s opinion on this issue was very well grounded. This point by the applicant therefore cuts no ice and is hereby disregarded. The net result is that I am functus officio as far as this matter is concerned and I proceed here and now to dismiss this Application as lacking in merit.
Court: Application dismissed with costs assessed at N20,000.00.
Dissatisfied with the judgment of the Lower Court delivered on the 25th July, 2011 per Ngozi Opara, J; the Appellant filed her Notice of Appeal with two (2) Grounds dated 24th April, 2012 having been granted extension same date by this Honourable Court. Below are the two Grounds of Appeal as couched:
GROUND OF APPEAL
The Learned Trial Judge lacked the jurisdiction to hear and determine the suit at the Court below.
i. It is trite law that Writ to be served outside a State must have endorsed on it that it will be served outside the State. The Petition which was served outside Imo State was not endorsed on it that it will be served in Lagos State.
ii. The Notice to set down the suit for hearing as stated in the Matrimonial Causes Act was not filed after the Honourable Court granted leave to the Petitioner to amend the petition.
iii. The mode of service by substituted means which was by pasting of the Court processes for the Appellant at the home of the Respondent is perverse as it will not be conveniently brought to the notice of the Appellant who shall have been served through publication in National Daily or at her parents house.
The Court below lacked jurisdiction to entertain the suit at the Court below as the Court processes were not served on the Appellant.
i. The Appellant lives in the same home with the Respondent who sought and got an order for
substituted service of the Court processes on the Appellant who he knew that the Appellant was out of the country.
ii. The issue of non-service of the Court processes robbed the Court of jurisdiction to entertain the suit as the Respondent by the Order of substituted service on his own home prevented the Appellant from the knowledge of the pendency of the suit at the Court below.
iii. The Respondent concealed facts from the Court below and obtained the judgment by fraud and against the Matrimonial Causes Act.
iv. The non-service of the Court processes on the Appellant robbed the Court of jurisdiction to entertain the Petition which the Respondent got judgment through misrepresentation, deceit and fraudulently.
v. The course of justice was defeated as the Appellant was not heard and she did not participate at the trial owing to the fraud by the Respondent who got the Default Judgment surreptitiously and without the knowledge of the Appellant who is denied right to fair hearing.
RELIEF SOUGHT FROM THE COURT OF APPEAL: That the entire Judgment and orders of Learned Trial Judge be set aside.
Following the transmission of the Record of Appeal and entering of the Appeal in this Court, the respective Learned Counsel for the parties exchanged their Briefs of Argument. In the Brief settled by the Learned Counsel for the Appellant and filed on the 20th day of June, 2012 Tagbo Chuba Anieto, Esq initially formulated five Issues from the Two Grounds of Appeal which he argued.
Upon being served with the Appellant?s Brief of Argument the Respondent through his Counsel Kingsley C. Ehujuo, Esq, who settled the Brief filed on the 1st day of April, 2013 which was deemed duly and properly filed and served on the 1st day of July, 2013 by leave of Court; in that Brief, raised a Preliminary Objection on whether Ground 2 of the Grounds of Appeal and Issues (1) ? (iv) formulated by the Learned Counsel for the Appellant there from are competent having regards to: (a) the decision appealed against, and (b) the guiding principles on formulation of Issues?
He thereafter formulated a sole Issue as calling for determination which is:
Whether the trial Court had the jurisdiction to entertain the petition the subject matter of the Appeal
On the 25th day of February, 2016 when the Appeal was to be heard, the Learned Counsel to the Appellant conceded to the Preliminary Objection and withdraw Issues Numbers 1 ? 4 as formulated along with the Arguments proffered in their respect and adopted Issue Number 5 as his Sole issue for determination which is:
?Whether the Court below had jurisdiction to entertain the petition for dissolution of marriage in the first place
With the Sole Issues raised by each of the Learned Counsel for the parties which issues are similar, this Appeal will therefore be determined on the Sole Issue of jurisdiction of the Trial Court to entertain and determine the Petitioner?s petition.
ARGUMENT OF LEARNED COUNSEL FOR THE APPELLANT ON THE APPELLANT?S SOLE ISSUE: ?WHETHER THE COURT BELOW HAD JURISDICTION TO ENTERTAIN THE PETITION IN THE FIRST PLACE
In arguing the Issue the Learned Counsel for the Appellant submitted in the first place that the Court below lacked the jurisdiction to entertain the Suit. He referred us to pages 1 ? 6 and 22 ? 29 of the Records in positing that the initial petition and the Amended Petition
had no endorsement of service on them that they would be served outside Imo State as provided by Section 97 of the Sheriff and Civil Process Act. Citing Nwabueze V. Okoye (1988) 4 NWLR (Pt. 91) page? And NEPA V. Onah (1997) 7 SCNJ 600; on the need to endorse a writ for service outside the State and the effect of non-endorsement as required by Section 97 of the Sheriffs and Civil Process Act; he argued that the Respondent only filed the request to set the Petition down for trial but did not file the Notice of Trial as provided by Order 11 Rule 46 of the Matrimonial Causes Rules which is applicable to both defended and undefended Suits. He insisted that by Order 11 Rule 46(5) of the Matrimonial Causes Rules it is mandatory that the Notice of Trial must be served even if the petition is undefended, but that from the Records the Notice of Trial was never served on the Appellant contrary to the Law and according to him, such failure rendered the entire proceedings of the Lower Court a nullity. Ebe V. Ebe (2004) 3 NWLR (Pt. 860) 215 refers.
?In conclusion, the Learned Counsel for the Appellant urged us to allow the Appeal and set aside in its entirety the
judgment delivered by Ngozi Opara, J., on the 25th of July 2011 dissolving the Appellant?s marriage as well as the orders as to custody of the children of the marriage made in default of Appellant?s appearance by reason of non-service of the Court processes on the Appellant and for lack of jurisdiction .
ARGUMENT OF LEARNED COUNSEL FOR THE RESPONDENT: ?WHETHER THE TRIAL COURT HAD THE JURISDICTION TO ENTERTAIN THE PETITION THE SUBJECT-MATTER OF THIS APPEAL
Reacting to the arguments of the Learned Counsel for the Appellant on the Sole Issue K.C. Ehujuo, Esq., conceded that a party to litigation should be served with the process of Court in person and it is because of impossibility or non-feasibility of personal service at all times that the law recognizes service by substituted means as provided for by the Matrimonial Causes Rules, Order VI Rules 7 thereof. For this submission he relied on Caribbean Trading & Fidelity Corporation V. N.N.P.C. (1992) 7 NWLR (Pt. 252 161 at 181 para. H; to further submit that by Order VI, Rule 7 (3); where on order for substituted service has been made by the Court in relation to service of a
document on a person, compliance with the Order shall be deemed to be due service on the person. Placing reliance again on Dawodu & Anor. V. Ologundudu & Ors. (1986) 3 NWLR (Pt. 33) 104; and Alhaji Haruna & Ors. V. Mrs Ladeinde (1987) 4 NWLR (Pt. 67) 941; he pointed out that by the Rules, the Law expects the party seeking for substituted service to set out in an affidavit the reason there for and where the Court is not satisfied with such reason(s) deposed to in the affidavit, the Application would be refused.
In the instant case we were referred to pages 7, 8, 12 and 13 of the Records where the order for substituted service was made on 18/04/2011 and to pages 14, 17, 29, 37 and 64 of the Records which contain the Affidavit of service to pose the question whether or not the service of the petition and other precesses in the Suit at the trial Court were duly and properly effected which he answered in the affirmative in that the Record of Appeal is replete with Affidavits of service of the Trial Court?s processes on the Appellant and the presumption of regularity prevails by virtue of Section 168 of Evidence Act, 2011 (as amended) in the absence of contrary evidence.
It was again the further submission of the Learned Counsel for the Respondent that it is trite law that if one allows another to do an act in which his interest is involved in a particular way but which he could have prevented at the time, he must be held to be bound by such act so done by his acquiescence and cannot be heard to complain thereafter that he was not a party to such an act under the circumstances. Ige V. Farinde (1994) 7 NWLR (pt. 354) 42 at 76 para. F; was cited and relied upon in so submitting and to further assert that the Appellant is precluded by the Judgment of 25/7/2011 to complain about non-service as she was at all material times aware of the processes but chose not to answer to the same.
Commenting on the authorities of Skenconsult (Nig.) Ltd V. Ukey (1981) 1 S.C. 6; Nwabueze V. Okoye (1988) 4 NWLR (pt. 91) 664; and NEPA V. Onah (1997) 1 NWLR (pt. 484) 680; cited by the Learned Counsel for the Appellant he submitted these authorities laid down amongst others, the following principles:
(a) That non-compliance with Section 97 of the Sheriffs and Civil Process Act is a mere irregularity which can be cured or waived; and
(b) That it is for the Defendant who alleges that the Service of a writ on him was in violation of any of the provisions of the Act to raise the issue at the earliest opportunity as soon as he is served. Odu?a Investment Co. Ltd. V. Talabi (1997) 10 NWLR (pt. 523) 1 at 21 ? 22 paras. E ? A, 51 paras. C ? H, 58 paras. A ? C refer.
(c) In his view, the Appellant?s failure/refusal to answer to the petition upon being served on 19/4/2011 (page 14 of Records refers); amounts to a waiver as it is too late in the day for her to object or otherwise raise the issue of non-endorsement of the Petition assuming it is a fundamental defect as the Appellant had the opportunity of taking immediate steps to nullify the proceedings upon being served with the Petition and the Court could not have waited indefinitely as held by the Court below quoting the Latin maxim expedit rei publicae ut sit finis litium, in support of his view.
On the effect of failure to endorse the summons for service outside jurisdiction, the Learned Counsel quoted the dictum of Pats-Acholonu, JSC in B.B.N. V. S.
Olayiwola & Sons Ltd. (2005) 3 NWLR (pt. 912) 434 at 453 para. C.
On the further question as to whose duty it was to make the required endorsement on the Writ of Summons for service outside jurisdiction, the Litigant or the Registry, he referred us to pages 79 ? 80 of the Record where the trial Judge answered the question and which answer is re-enforced by the Supreme Court in the said B.B.N. Ltd V. S. Olayiwola & Sons. Ltd (supra) at pages 456 para. E.F, and 457 paras. B ? C. In addition to the above authorities, the Learned Counsel referred us to Section 2(1) of the Matrimonial Causes Act, 2004 on the unlimited territorial jurisdiction of the High Courts in the venue for the institution of Matrimonial Causes under the Act in which case out of jurisdiction would mean outside the Federal Republic of Nigeria.
?He insisted that Section 2 of the Matrimonial Act has whittled down the supposed legal potency of Section 97 of the Sheriffs and Civil Processes Act, 2004 and therefore non-compliance with Section 97 of the said Act is of no moment in so far as matrimonial causes are concerned in Nigeria. In the light of his foregoing
submissions he concluded that there is nothing in the Suit robbing the trial Court of the jurisdiction to entertain the petition, the subject matter of this Appeal. We were therefore urged to uphold their submissions and dismiss the Appeal with punitive costs.
RESOLUTION OF THE SOLE ISSUE
I have carefully considered the submissions of the Learned Counsel for the parties on their respective issues and am of the firm view that the crux of this Appeal is whether the Court below had the jurisdiction to hear and determine the Petition of the Petitioner/Respondent considering the grouse of the Appellant that she was not property served or at all with the processes of Court before the Lower Court proceeded to hear the petition and subsequently gave judgment in favour of the Respondent. The Learned Counsel for the Appellant has relied on Section 97 of the Sheriffs And Civil Process Act, CAP. 56, Laws of the Federation and the Judgment Enforcement Rules made there under, as well as pages 1 ? 6 and 22 ? 29 of the Record of proceedings to argue in the place that the Amended Petition had no endorsement on it that same would be served out of
jurisdiction of Imo State High Court.
For the avoidance of doubt, Section 97 of the Sheriffs And Civil Process Act, 2004 which provides for endorsement on writ for service outside a State, stipulates that:
?97. Every Writ of Summons for service under this part out of the State or the Capital Territory in which it was issued shall, in addition to any other endorsement or notice required by the law of such State or Capital Territory, have endorsed thereon a notice to the following effect (that is to say)?…………………………………………………………………………………………….
?This summon (or as the case may be) is to be served out of the State (or as the case may be)? and in the
..state (or as the case may be)
In NEPA V. Onah (1997) 1 NWLR (pt. 454) 680 at 690 paras. D ? H; U. Mohammed JSC who delivered the Lead Judgment of the Supreme Court, had cause to comment on the above provision of the Sheriffs and Civil Process Act and apart from quoting with approval the English case of In re: Pritchard, Deed (1963) 1 Ch. 502 at 526 per Upjohn, L.J. who held that where there has been a fundamental failure to comply with the requirements of the Statute relating to the issue of the proceedings; (processes?) it was not a mere irregularity; but that the all important and essential requirement of the issue of a proceeding; whether it initiates the action is that it must be issued with the seal of the issuing office. This is because, according to the English jurist:
?It is much more than irregularity. I think it is a nullity and it is not possible for the defendant to waive the defect;?
?His Lordship of our Supreme Court in that
Judgment (NEPA V. Onah (supra), had cause to review the decision in Nwabueze & Anor V. Justice Obi-Okoye (1988) 4 NWLR (Pt.91) 664, cited ably by the Learned Counsel for the Appellant and which was decided three months before the Judgment of the Court of Appeal from where it proceeded to the apex Court.
In that case which was a libel action, the Defendants addresses for service as shown in the Writ of Summons were in Lagos State but leave to issue the Writ was neither applied for nor obtained. After the Issuance of the Writ, the Plaintiff applied for substituted service as in this case which was accordingly granted but soon after service, the Learned Counsel for the Defendants, Chief F.R.A. Williams, S.A.N. by a Motion on Notice, moved the Enugu High Court from where the Writ was issued, to set aside the Writ on grounds, inter alia, that the Writ was irregularly issued for failure to comply with the mandatory provisions of the Sheriffs And Civil Process Act which governs service out of jurisdiction. The Trial High Court in its Ruling held that the service of the Writ was improper for non-compliance with Section 97 of the Sheriffs And Civil Process Act but
however did not nullify the Writ and ordered that it should be endorsed as having been served on the Defendants.
On appeal to the Court of Appeal, their Lordships of the Court of Appeal, Enugu Division, affirmed the decision of the High Court and on further appeal to the Supreme Court, Agbaje, JSC., in his Lead Judgment held that: ?the issue of Writ of Summons and the service of the Writ on a Defendant are conditions precedent for the exercise of the Court?s jurisdiction over the Defendants. And from what I have been saying so far a condition precedent for the issue of the Writ against the Defendants in this case who are resident outside the area of territorial jurisdiction of the High Court of Anambra State and who, again, neither of them carries on business within the area of jurisdiction, is that leave of the State High Court had to be first obtained before the writ was issued.? Page 691 paras. A ? D of the Report.
Mohammed, JSC in his said Lead Judgment in the N.E.P.A V. Onah?s case also reproduced the dicta of Obaseki, Uwais, and Karibi-Whyte, JJSC; the latter whose opinion in Ezomo V. Oyakhire was extensively
quoted in the course of argument by Counsel and who all insisted that in the absence of leave to issue the Writ which was endorsed for service outside jurisdiction, the High Court of Anambra State sitting at Enugu lacked the jurisdiction to so do as the Writ of Summons and the issuance thereof were a nullity. (see page 691 paras. E ? H of the Report).
As regards the crux of our Appeal herein the Learned Law Lord at page 6921 paras. A ? C; quoted with approval the contribution of Wali, JSC on the provisions of Sections 96 and 97 of the Sheriff And Civil Process Act which govern the issuance and service of writ outside jurisdiction and his opinion was this: ?As regards the issue of non-compliance with the provisions of the Sheriffs And Civil Process Act, CAP: 198 Laws of the Federation of Nigeria, 1958; particularly Sections 96 and 97, which govern the service of Writ of Summons in the State other than in which it was issued, it only suffices to state that apart from the mandatory nature of Section 97 of the Act, it is my view that the Writ is incomplete without the required statutory endorsement. Such endorsement is part and parcel of the
Writ and without it, it is both defective and incompetent. The endorsement is not a procedural requirement that could have been treated as irregularity capable of being cured by the Court Registrar.
The Supreme Court again, per Ogundare, JSC was called upon to construe the purport of Section 97 of the Sheriffs And Civil Process Act and the effect of non-compliance thereof in the case of Odu?a Investment Co. Ltd. V. Talabi (1997) 10 NWLR (Pt. 523) 1 at pages 51 ? 52 paras. G ? E; and after reviewing the Leading authorities like SkenConsult Ltd. V. Ukey 1981) 1 SC 6, Ezomo V. Oyakhire (1985) 1 NWLR (Pt.195; Nwabueze V. Okoye (1988) 4 NWLR (pt. 91) 664 and NEPA V. Onah (supra); he in one of the greatest expository and epochal judgments ever rendered by any Nigerian Judge dead or alive reasoned particularly in paragraph H of page 51 to A at page 52 that:
?It follows, therefore that where a defendant is served with a writ of summons in breach of Section 97 and 99 of the Act, he has a choice either to object to the service by applying to have it set aside and the Court ex debito justitiae will accede to the Application or
ignore the defect and proceed to take steps in the matter?. I am not unmindful of the fact that inSkensconsult and Nwabueze this Court had held that non-compliance with these Sections would render the proceedings null and void.?
His Lordship concluded thus at page 52 paras. C ? E:
?From all I have been saying, my answer to the question set out in this judgment, therefore, is that non-compliance with Section 97 and/or Section 99 of the Sheriffs And Civil Process Act and the Rule of Court requiring leave of the Court or a Judge for a writ to be served out of jurisdiction renders the Writ and/or service of it voidable and the Defendant who complains of such non-compliance is entitled ex debito justitiae to have same set aside as was done in Skensconsult, Nwabueze and NEPA, provided he has not taken any steps in the matter which will amount to a waiver of the irregularity complained of. Where the latter is the case, his application to set aside must be refused. I need point out, for the avoidance of doubt, that the power to set aside is without
prejudice to the power of the Court, to allow, in appropriate case, such amendments to be made and to make such order dealing with the proceedings generally as it thinks fit.?
Going by the above authorities and dicta of their Lordships of the Supreme Court and upon a perusal of the pages cited by the Learned Counsel for the Appellant, we shall now determine whether the Respondent (then the Petitioner) breached Section 97 of the Sheriffs And Civil Process Act. I have taken a look at pages 22 ? 29 and indeed 30 ? 37 of the records but there is no such endorsement on the Amended Petition filed by D.O. Nosike, Esq on behalf of the Petitioner/Respondent on the 14th day of July, 2011, when the amendment was effected and ordinarily (underlining mine); the service of the Writ and the Writ itself was voidable. The Appellant was therefore entitled from the authorities enumerated above and more particularly on the dictum of Agbaje, JSC, to apply ex debito justitiae to set them aside as she had done; though the Application was refused because the Court below had become functus officio having made the Decree absolute before the Application to set
aside the Default Judgment was filed.
The Learned Counsel for the Appellant has also in the course of his argument on the Sole Issue that the Respondent only filed the request to set the Petition down for trial but failed to file the Notice of trial as provided for by Order 11 Rule 46 of the Matrimonial Causes Rules which Rule applies to both defended as well as undefended Suits and that under the Rules it is mandatory that the notice of trial be served on the Respondent even if the petition is undefended. Ebe V. Ebe (supra) was cited in submitting that the Records reveal that the Notice of Trial was never served on the Appellant and that such failure to serve rendered the entire proceedings a nullity.
Order XI Rule 46(i) of the Matrimonial Causes Rules stipulates that: ?Subject to Sub-rule (2) of this rule, a party who requests a Registrar to set a Suit down for trial shall deposit with the Registrar a form of notice, in accordance with Form 33, for signature by the Registrar and a copy of that form of notice for each party to the suit.?
By the provisions of Sub Rule 5 of Rule 46 thereof:
?(5) Where a Registrar sets a
suit down for trial, he shall ?
(a) Insert in each copy of the form of notice deposited under sub-rule (i) of this rule, the name of the Court division at which the suit has been set down for trial, and if he has, in accordance with the practice of the Court to set the proceedings down for trial on a particular day or for a sitting of the Court commencing on a particular day, insert particulars of that day or sittings;
(b) Post each copy of the notice to the party whose address appears on it at that address (postage being prepaid; and
(c) Certify, in accordance with form 34, that-
(i) The suit is ready for trial or has been set down for trial in pursuance of a request under Sub-rule (2) or (3) as the case may be, of Rule 43 of this Order; and
(ii) That he has complied with paragraphs (a) and (b) of this sub-rule, and filed that Certificate.?
Sub-Rule 6 of the above Order makes it clear that in a proceeding in a Court, a Certificate under Sub-rule 5 of the Rule, relating to a suit under the hand of a Registrar of the Court, shall be evidence that the provisions of paragraphs (a) and (b) of that Sub-rule have been duly complied with in relation to the suit.
Now,Ebe V. Ebe (2004) 3 NWLR (Pt. 860) 215; was decided by the Enugu Division of this Court with Order XI Rule 46 of the Matrimonial Causes Rules, falling for interpretation. At page 236 paras. C ? E and 249 paras. E to H; Olagunju JCA who read the Lead Judgment and Ogunbiyi, JCA in his concurring Judgment, held firstly that the refusal of the Petitioner to join the two adulterers who committed the adultery with his wife, as Respondents to the Petition as enjoined by Section 32(1) of the Matrimonial Causes Act, had left unsatisfied the condition precedent for the Court to entertain the Petition thus rendering the action incompetent on ground of not being constituted as stipulated by law.
On the vexed question of non issuance and Service of Notice of Trial on the Respondent to the petition, Olagunju, JCA; reasoned that:
Similarly as provided by Sub-rule 3(1) of Order XI of the Matrimonial Causes Rules, allegation by a Petitioner that the Respondent has committed adultery with a person unknown is a bar to setting down the petition for trial unless the Court had been moved to make an order dispensing with the naming of the person. That is also a condition precedent for setting the petition down for hearing. The Petitioner having failed to obtain order of the Court dispensing with naming the numerous persons alleged to have committed adultery with the Respondent on the various occasions enumerated in paragraphs 8E, 81, 8J, 8K of his petition setting down the petition for hearing as was done by the Registrar of the Court below on Form 33 (dated 5/6/97) was in direct conflict with the positive prohibition in sub Rule 3(1) of Order XI of the Matrimonial Causes Rules. It renders the proceedings conducted pursuant to the erroneous setting down of the petition for hearing to be invalid.
Re-echoing the stance of his Learned brother, Ogunbiyi, JCA (as he then was) at page 247 paras. D ? H posited with reference to Order XI Rule 46(1) of the Matrimonial Causes Rules, that there being no compliance with provisions of the Rules, the effect of the breach of Sub-rules 3(b) and (4) of the said Rule 46 by the failure to deposit a copy of the Notice of trial for service on the Appellant had evidently also breached Sub-rule(5) of the Rule 46 because the notice was never served on her.
After reproducing sub-rule 5 of Order 46 he held in paragraph H thus: It is of paramount significance to reiterate the contents and expectations of the said provision of sub-rule 5 supra wherein the use of word shall makes it mandatory and incumbent upon the Registrar to so comply and insert in each copy of the Form the name of the Court, Division at which the suit has been set down for trial particularly the day or sittings of Court etc. Each of the copy of the notice should therefore be posted to the party whose address appears on it at the designated ADDRESS.
At page 249 paras. A to E, His Lordship concluded that since it was over- whelmingly evident that the Respondent who was then the Appellant as in this case, was never put on notice of the hearing of the Petition as required, the proceedings of the trial Court was rendered null and void on the strength of the authority of Ozowala V. Ezeihesie (1991) 1 NWLR (Pt. 170) 707; where the Court of Appeal allowed the Appellant?s Appeal on the ground that proceedings were conducted without notice to the Defendant and Judgment delivered without hearing him. Other authorities cited in support of his position were Food Commodities Ltd V. Aremu (1990) 2 NWLR (Pt. 134) 554 at pp 561 ? 564 Obimonure V. Ojumoola & Anor (1966) 1 ALL NLR 150 and Lawrence Scott Emukpor V. J.I. Ukavbe (1975) 12 SC P. 41 at 47;
Going by the above authorities alone, the proceedings of the Trial Court were a nullity for non-compliance with the mandatory provisions of Order XI Rule 46 which tantamount to breach of a condition precedent for assumption of the Lower Court’s jurisdiction to entertain the Petition, more so, as the non-service of the Notice of Trial breached the Appellant’s right to fair hearing as entrenched in Section 36 of the Constitution of the Federal Republic of Nigeria 1999 (as amended). This is because on a careful perusal of the entire Record of proceedings, there is no indication as to where such Notice of Trial was issued to the Appellant.
Although the Learned Counsel for the Respondent had made a salient point when he submitted on the provisions of Order VI Rule 7 of the Matrimonial Causes Rules which consecrates substituted service where personal service of originating process is not feasible (see Carribean Trading & Fidelity Corporation V. N.N.P.C. (1992) 7 NWLR (Pt. 252) 161 at 181 para. H. where Tobi, JCA (as he then was and now of blessed memory) succinctly stated the position of the law that:
And that takes me to the issue of substituted service. The basic position of the law is that a party in litigation should be served with the process of Court personally. In view of the fact that personal service may not be possible or feasible all the time, the law recognizes service by substitution. Thus Order 6, Rule 6 makes provision for substituted service.
By the rule, where it is made to appear to the Court that personal service cannot be effected, the Court may make such order for substituted service. Every application to the Court for substituted service shall be supported by an affidavit setting forth the grounds upon which the Application is made.
By this rule, the application for substituted service has to be made by the party seeking the service. That is the Applicant. The law expects the Applicant to set out in an affidavit the reason or reasons why the service by substitution is necessary. Where the Court is not satisfied with the reason or reasons deposed in an affidavit, an application for substituted service will be refused. Otherwise it will be granted. See United Nigeria Press V. Adebanjo (1969) 1 ALL NLR 431; Dawodu & Anor. V. Ologundudu & Ors. (1986) 3 NWLR (Pt. 33) 104; Alhaji Haruna & Ors. V. Mrs Ladeinde (1987) 4 NWLR (Pt. 67) 941.
The pertinent question that calls for an answer herein as it was posed in the Carribean Trading & Fidelity Corp. V. NNPC (supra), is whether from the affidavit in support of the Application for substituted service the Lower Court was right in granting the Application for substituted service. Put diffidently, was there substantial evidence to warrant the grant of the Application for substituted service?
The Motion Exparte dated 29th March, 2011 for an order granting leave to the Petitioner to serve the Respondent with the Notice of Petition and other processes in this suit by pasting same on the Respondent’s gate at 2/4 Mosley Road, Block BPH- 7, Ikoyi Lagos State, is at page 7 of the Records.
In support of the Application one Charity Meziobi, Mrs. a Senior Litigation Clerk in the Law Firm of Ndukwe Nnawuchi Esq, KSC & Co. of 85 Tetlow Road, Owerri, Imo State of Nigeria, deposed to an Affidavit on behalf of/authorities of the Petitioner and her boss, N.A. Nnawuchi, Esq, KSC. According to her averment in paragraph 3 of the said Affidavit in support: ?That am informed by the Petitioner and I verily believe him that the Respondent has been making herself incommunicado and as such, it will be difficult for the Bailif of this Honourable Court to serve her (Respondent) with the Notice and petition and other processes of this Court personally except by substituted service i.e by pasting same on the gate of 2/4 Mosley Road, Block BPH-7 Ikoyi, Lagos where she will easily see it. See page 8 of the Records.
The order for substituted service was made on 18th day of April, 2011 (see pages 12 and 13). There is no doubt that the Affidavits of service are at pages 14, 17, 29, 37 and 64 of the Records and ordinarily, from the Records the Respondent could rely on Section 168(1) of the Evidence Act, 2011 on the presumption of regularity to submit as he has done in paragraphs 5.05 ? 5.06 of his unpaged Brief of Argument upon the assumption that the Appellant acquiesced in the irregular service or that she was seised of the processes but chose not to attend Court to defend herself. Ige V. Farinde (1994) 7 NWLR (Pt. 154) refers at page 76 para. F; was rightly cited to submit that in such circumstance, the Appellant ought not to complain that she was not a party to that service as she would have waived her right to complain. See J.U. Ezomo V. G.B.L. Oyakhire (1985) LPELR ? 1216 (SC), Ariori V. Elemo (1983) 1 S.C. 13; A.I.E. V. Adebayo (2005) LPELR ? 642 (SC).
?However, in my humble view the Court below ought to have been circumspect in granting the Application for substituted service when the only reason advanced by the Petitioner was that the Respondent who was living in the same house and address with him (the Petitioner/Respondent) was incommunicado. I consider that reason very spurious as the Bailiff of the Court could still have gone into the house to confirm whether the Respondent was incommunicado when the processes were issued and served. A reasonable Tribunal even ought to have also gotten the haunch as to why even though by Section 2(1) of the Matrimonial Causes Act, 2004, proceedings can be instituted in any High Court of any State as there is only a single jurisdiction; the Petitioner would leave Ogun, Oyo, Edo, Delta and Anambra States and prefer the forum convenience of Owerri High Court to initiate proceedings. See again paragraph 7 (1) of the Amended Petition where the Petitioner/Respondent pleaded that he got to know that the Appellant flew with their children to London before instituting the action.
Of course the answer can be found in the Respondent/Appellant?s averments in her affidavit in support of her Application for extension of time within which to apply for the Default Judgment of the Lower Court to be set aside along with the entire proceedings of the High Court presided by Ngozi Opara, J. See paragraphs 3 to 18 and the annexed Exhibits AOV and AOV2 to the Affidavit. In sum, Daniel Udeh on behalf of the Respondent/Appellant had deposed to uncontroverted facts that at all times material to the commencement of the Suit from April to July, 2011 when Judgment was delivered on 25th July, 2011, the Respondent/Appellant was living with the Petitioner/Respondent at No. 2/4 Mosley Road, Block BPH-7, Ikoyi Lagos which was their mutual matrimonial home. The Respondent/Appellant also has a home in London, England.
According to the Appellant, with the knowledge of the Petitioner/Respondent, the Appellant travelled abroad and as soon as the Appellant did so, the Petitioner surreptitiously came all the way from Lagos to institute the divorce proceedings in Imo State against the Appellant who was outside the country when the Petitioner fraudulently instituted the petition. Exhibit AOV her International Passport is tendered at page 50 of the Records. She averred further that the Petitioner sued her to the High Court of Imo State ostensibly to neutralize the effect of the Judgment of the Court in England which made restraining orders against the Petitioner. Exhibit AOV2, the said Judgment of the English Court made on 1st April, 2011; can be found at page 52 of the Records to 55 thereof. She disclosed that the Petitioner is a very violent person and physically assaults her hence the order in Exhibit AOV2. She had always been incharge/Custody of the three children of the marriage.
She came back to Nigeria subsequently after the Judgment of the Lower Court and while sweeping her house with the Petitioner, she swept out from under one of their beds, the copy of the initial Petition before the Court. She stated that the Petitioner willfully served the Court processes on himself which processes were meant for the Respondent/Appellant.
Upon seeing the processes the Appellant got curious when she got the processes meant for her under the bed and then contacted their law firm over the said process. Here in Owerri, they discovered that the Petitioner had instituted the action in the High Court of Imo State while the Respondent was abroad and that the Judgment had been delivered on the 25th July, 2011 without any of the processes being served on her and without her appearance.
Her Lawyers then obtained all the process used in the hearing of the Petition and discovered all were not brought to their knowledge and that the Petitioner misled the Court and obtained the judgment by fraud. She further stated that all the allegations of facts and information contained in the Petition were complete falsehoods which she ought to have rebutted if she were to be served.
As said earlier all these weighty averments against the Petitioner were not challenged by way of Counter-Affidavit but the Petitioner was contented with filing an objection and Address on points of law because he had achieved his aim of getting a Decree absolute behind the back of the Appellant which he knew the trial Court could not set aside by virtue of Section 61 of the Matrimonial Causes Act as the Court had become functus officio.
I agree completely with the learned Counsel for the Appellant’s submission while citing the dictum of Akpabio, JCA in Adegoshoye V. Adegoroye (1) SMC (Selected Matrimonial Causes) at page 41; that a forum in which both the Petitioner and the Defendant were resident was to be preferred to another venue in which none of the parties was resident. Even under the High Court of Imo State (Civil Procedure) Rules, the forum where the Petition was initiated; Order 2 thereof which governs place of institution/of Trial of Suits by Rules 3 and 4 categorically stipulate that:
?All suits for specific performance, or upon breach of any contract, may be commenced and determined in the
judicial Division in which such contract ought to have been performed or in which the Defendant resides or carries out business.
- (1) All other Suits may be commenced and determined in the judicial Division in which the Defendant resides or carries on business or in which the cause of action arose.?
Therefore, barring the provisions of Section 2(1) of the Matrimonial Causes Act whichis to the effect that, subject to the Act, a person may institute a Matrimonial Cause under the Act in the High Court of any State of the Federation; and for that purpose the High Court of each State of the Federation shall have jurisdiction to hear and determine Matrimonial Causes instituted under the Act; the Petition ordinarily ought not have been initiated/instituted in Owerri rather than Lagos where both the Petitioner and Respondent reside or where the Defendant resides and does business.
With the provisions of Section 2 of the Matrimonial Causes Act, the Petitioner had the right any way to institute the action in Owerri and it would appear that the above Section has also whittled down the provisions of Order 96 and 97 of the Sheriffs and Civil
Process Rules, 2004 on the mandatory provision of leave and endorsement of a writ for service outside a State jurisdiction and therefore the Writ of Summons/Notice of Petition and other originating processes needed no endorsement for service on the Appellant since by Section 2(3) of the Matrimonial Causes Act, 2004; ?For the avoidance of doubt, it is hereby declared that a person domiciled in any State of the Federation is domiciled in Nigeria for the purposes of this Act and may institute proceedings under this Act in the High Court of any State whether or not he is domiciled in that particular State.?
Thus, the Learned Counsel for the Respondent was right in his submission that the Legal potency of Section 97 of the Sheriffs and Civil Process Act, had been whittled down by Section 2(1) of Matrimonial Causes Act and accordingly that explained why I held earlier in this Judgment that ordinarily the non-compliance with Section 97 of the Sheriffs and Civil Processes Act would have rendered the service of the Writ/Notice of Petition and other Originating Processesvoidable at the instance of the Appellant and the Appellant would have been entitled
ex-debito justitiae to apply to the Court to set the service aside. Since however, the provision of the Matrimonial Causes Act/Rules is the specific Law governing Matrimonial Causes proceedings while the Sheriffs and Civil Process Act and the Rules of Court are general in nature, the Specific Law on the subject matter shall prevail. After all, the law is trite that where there are two enactments on a matter one making general provisions and the other making specific provisions, the specific provisions shall prevail. See per Fatayi-Williams CJN in The Governor of Kaduna State & Ors. V. Lawal Kagoma (1982) 6 S.C. 87 at 107 ? 108.
I shall therefore resolve the issue of non endorsement of the Originating Process outside the jurisdiction of the Imo State High Court in favour of the Petitioner/Cross-Respondent.
Before rounding up, let me comment briefly on the provisions of Sections 61 and 67 of the Matrimonial Causes Act upon which the Court relied in refusing to grant the Appellant/Cross-Petitioner?s Application for extension of time to apply for the setting aside of the Processes and proceedings and Judgment of the Lower Court for want of jurisdiction in that the judgment was obtained by fraud, deliberate misrepresentation apart from the fact that none of the processes were served on her.
Section 61 of the Matrimonial Causes Act provides thus:
RECISSION OF DECREE NISI ON GROUND OF MISCARRIAGE OF JUSTICE
Where a decree nisi has been made but has not become absolute, the Court by which the decree was made may, on the application of a party to the proceedings, if it is satisfied that there has been miscarriage of justice by reason of fraud, perjury , suppression of evidence or any other circumstances, rescind the decree and, it thinks fit, order that the proceedings be reheard.
Section 67 on the other hand stipulates that: ?Where a decree nisi has been made in any proceedings, for the purpose of this part of the Act, the proceedings shall not be taken to have been finally disposed of until the decree nisi has become absolute.?
By the above provisions of the Act, it is clear that while the Decree Nisi has not been made absolute, the Respondent/Appellant could have brought her Application for the Judgment of the Lower Court and the Proceedings thereof to be set aside on grounds of fraud, misrepresentation, perjury, suppression of evidence and miscarriage of justice, otherwise once the decree nisi had been made absolute, the Court below had become functus officio and could not have entertained such an application in which case everything relating to the divorce proceedings had been concluded absolutely.
In the circumstance, it would appear that the provision of Section 241(2)(b) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) which is to the effect that:
(2) Nothing in this Section shall confer any right of appeal-
(b) from an order absolute, for dissolution or nullity of marriage in favour of any party who, having had time and opportunity to appeal from decree nisi on which the order was founded had not appealed from that decree nisi,? buttresses the decision of the trial Court to refuse the Appellant?s Application to set aside the proceedings now on appeal as the right of appeal conferred on the Appellant would have been spent and obliterated by acquiescence or tardiness on the part of the Appellant.
In this case however, from what we have found from the Records, the Respondent did misrepresent facts to the Court and obtained the judgment by fraud, suppression of facts apart from the fact that the Appellant was not served with the originating processes and the Notice of trial.
To prove the fraudulent nature of the Respondent?s Petition, the Appellant had tendered Exhibit AOV which demonstrated that she travelled out from their matrimonial home to the knowledge of the Petitioner/Respondent who surreptitiously ran and by-passed all nearby jurisdictions to file his spurious Petition in the Imo State High Court and followed same with a Motion Exparte for substituted service.
Above all Exhibit AOV2 shows clearly that the Petitioner was issued a Molestation Order under Section 45 of the Family Law Act, of England 1996 from the Principal Registry of the Family Law Division at the instance of the Appellant. See page 52 of the Records where the Respondent was forbidden to:
- Use or threaten violence against the Appellant.
- Intimidate or harass or oppress the Applicant (now Appellant); and restrained him absolutely not to enter or attempt to enter the property of the Appellant known as 6 Kensington Park Gardens London, W11 3HB or go within 100 metres of it.
The order was made on 4th April, 2011 following the Appellant?s Application made on the 1st day of April, 2011. Infact at page 54 of the Records the custody of the three children of the marriage had been given to the Appellant by the Order of the Family Court of England. From all indications, the Trial Court had no jurisdiction to hear and determine the Petition in that the Appellant was not served with any of processes of Court apart from the miscarriage of justice caused the Appellant when judgment was entered against her in default of appearance.
In the very recent decision by the Supreme Court in Ihedioha V. Okorocha (2016) 1 NWLR (Pt. 1492) 147 at 176 177 paras. H D; 203 paras A D; per Okoro JSC placing reliance on Emiskip V. Exquisite Industries (Nig.) Ltd. (2003) 4 NWLR (Pt. 809) 88; Skenconsult (Nig.) Ltd V. Ukey (1981) 1 SC 6; Craig V. Kanseen (1943) 1 QB 256 and Oke V. Aiyedun (1986) 2 NWLR (Pt. 23) 58 as well as P.P.A. V. INEC (2012), 13 NWLR (Pt. 1317) 215 S.C. at 237; per Ngwuta, JSC; S.S. (Nig.) Ltd.
V.A.S. (Nig.) Ltd (2011) 4 NWLR (pt. 1238) 596 at 620 paras. B ? D; restated the trite state of our law that service of originating process is a precondition to the exercise of jurisdiction by the Court. Where therefore there is non service or there is a procedural fault in service, the subsequent proceedings are a nullity ab initio. According to the Learned Law Lord:
This is based on the principle of law that a party shall know or be aware that there is a Suit against him so that he can prepare a defence. If after service he does not put up a defence, the law will presume and rightly too, that he has no defence. But where a Defendant is not aware of a pending litigation because he was not served, the proceedings held outside him will be null and void.
Following the above dictum of the erudite Law Lord and having held earlier that the Appellant was not served with the originating processes before the case was heard and determined behind her and Judgment delivered against her, the failure to put the Appellant on Notice just as in the Ihedioha V. Okorocha?s case supra, robbed the trial Court/Judge of the requisite jurisdiction to entertain the petition. See also CBN v. Inter Stella Communications Ltd.(2015) 8 NWLR (Pt.1462) 456 per Abba-Aji, JCA.
Accordingly, this sole issue is resolved in favour of the Appellant. The Appellant’s Appeal is meritorious and is hereby allowed. The Judgments of Ngozi Opara, J. delivered on 25th July, 2011 as well as the subsequent one delivered on the 8th day of December, 2011 which is supposed to be a Ruling based on the Appellant’s Application to set aside the former/earlier judgment, are hereby set aside for want of jurisdiction. I make no orders as to Costs.
ITA GEORGE MBABA, J.C.A.: I had the privilege of sharing conference and also reading the lead judgment, in draft, just delivered by my learned brother, Ignatius Igwe Agube JCA. In his usual painstaking manner, my Lord has dutifully and exhaustively discussed and considered the pertinent issues raised for determination in the appeal, admirably, and I agree, completely, with his reasoning and conclusion.
It is, indeed, curious that the Respondent, who resided with his wife and children in the same address at 2/4 Mosely Road, Block BPH-7, Ikoyi, Lagos, decided to leave Lagos State (where their marriage was also contracted) and came, all the way, to Owerri Imo State, passing over 5 States, in between, to institute divorce proceedings against his wife. And he manipulated the service processes, to ensure that the wife was kept incommunicado and away from knowing the mischief he planned, in the name of the law, as he deceived, misled and goaded the trial Court to grant him order nisi to dissolve their marriage, which later became absolute, and to grant him custody of the children of the marriage.
It is obvious the Respondent did not want the wife to know about the divorce suit, hence, he moved far away from Lagos to take out the suit, and purportedly served her by substituted means, by pasting the processes on the gate of their said residence, at a time he know the wife was away in London. He made the Court to deliver default judgment, speedily, completing the entire process within 3 months, while the wife, was still unaware of the entire proceedings! He had told his lawyer that the wife ?had made herself incommunicado? and the lawyer believed that trash, and fed the Court with that too as the reason the Court should not bother to send the Bailiff to serve the Court Processes on her, rather the processes be pasted on their gate for the wife (who was now in London).
On course, from the affidavit and disclosures by the wife, she stumbled on the Court process under their bed, on her return from London (Only the Respondent and the Bailiff, I think, can explain how the Court processes, meant to be pasted at the gate, found their way to under the bed in their home!). The travel documents tendered by the Appellant (the wife) and the Court Order, from a London Court, can attest to the misrepresentation and fraud by the Respondent in the manner he obtained the order absolute in suit No.HOW/90/2011 (which suit was not even originated with a number depiciting a divorce proceeding).
?By law, fraud and misrepresentation vitiate any judgment obtained by that process. The same situation applies, where a party was not served or duly served with the processes that culminated in the judgment, as no judge has jurisdiction to give judgment against any party, who was not served with processes entertained by the Court, and so was not heard. See Kayode & Anor v. Abdulfatai (2012) 33 WRN 145, Skenconsult Nig. Ltd v. Ukey (1981) 1 SC 6; ACB Plc vs. Losada Nig. Ltd (1999) SCNJ 209; Mark vs. Eke (2004) 1 SCNJ 243 (2004) NWLR (Pt.865) 54.
The Respondent, in the circumstances, cannot seek protection under Section 241(2)(b) of the 1999 Constitution, as amended, which seems to operate against only a party who, ?having had time and opportunity to appeal from decree nisi on which the order was founded, had not appealed from that decree nisi?
Of course, from the facts disclosed on the Records, Appellant was not aware of the suit, nor the order nisi granted on 25/7/11, and she took steps on 27/10/11 to set aside the order on becoming aware of it. The law barring appeal against divorce/order absolute, cannot, therefore, operate against a party who did not have time and opportunity to appeal against an order nisi, before it became absolute.
I adopt the rich and more detailed reasoning of my learned brother, Agube JCA, in this appeal and allow the appeal and abide by the consequential orders in the lead judgment.
FREDERICK OZIAKPONO OHO, J.C.A.:
I have read the judgment of my learned brother, IGNATIUS IGWE AGUBE, JCA and I am in agreement with the reasoning and conclusions in resolving this Appeal in favour of the Appellant. I also abide by the consequential orders made by the Court.
Tagbo Anieto, Esq.For Appellant(s)
S.C. Imo, Esq. with him, T.A. Ndukwe For Respondent(s)
Tagbo Anieto, Esq.For Appellant
S.C. Imo, Esq. with him, T.A. Ndukwe For Respondent