Veronica Nneka N. Ibeziako V. Professor Stephen M. Ibeziako (2016)

LawGlobal-Hub Lead Judgment Report

HELEN MORONKEJI OGUNWUMIJU, J.C.A. 

This is an interlocutory appeal against the ruling of HON. JUSTICE G. C. ANULUDE of the Anambra state High Court delivered on the 31st day of October, 2012.

The petitioner before the High Court hereinafter called the respondent filed a petition dated 10th July, 2009 for dissolution of the marriage between him and the respondent hereinafter referred to as the appellant.

The respondent sought and claimed the following reliefs:
1. A decree of dissolution of the marriage.
On the following grounds:
a) That the marriage had broken down irretrievably
b) That since the marriage, the respondent had behaved in such a way that the petitioner cannot reasonably be expected to live with her.
c) That the petitioner and the respondent have been living apart for a continuous period of at least 3 years immediately preceding the presentation of this petition.

The respondent then filed a reply and answer to the cross petition dated and filed on the 2nd day of September, 2009.The respondent on 30th day of March, 2010 also filed form 34 the registrar’s certificate that suit is ready for trial.

The

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suit was set down for definite hearing on 25th April, 2012. The appellant, then, by a motion on notice brought pursuant to Order 4 Rule 1 (5) and Order 27 of the Matrimonial Causes Act dated and filed on 30th April, 2012 prayed the Court for the follow reliefs:
1. An order striking out the petition on the ground that the same is wholly incompetent in law as the petitioner/ respondent failed to comply with the mandatory requirements of the law relating to the same.
On the following grounds:
a) The petitioner/respondent had before his present marriage he is seeking to divorce, married another woman, Miss Sophia Egwuatu.
b) The petitioner divorced his said 1st wife and subsequently contracted the 2nd marriage, he now seeks the dissolution of same.
c) The petitioner/respondent did not disclose the above facts in his present petition and did not furnish the Court with any info relating to the previous dissolved marriage in his petition.
d) Furthermore, the petitioner/respondent did not annex the marriage certificate to the said marriage over which he now seeks dissolution in his present petition.

?The learned trial judge

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delivered a ruling on the 31st of October, 2012 wherein His Lordship held that Order 5 Rule 1(5) and Order 27 of the Matrimonial Causes   Act are mere rules for filing a divorce petition and a breach of the rule is a mere irregularity and would not render the process a nullity as such irregularity can be waived if the party complaining acted timeously and before taking further steps in the proceedings.

The Learned trial judge consequently dismissed the motion in the interest of substantial justice and fair hearing.

Dissatisfied with the ruling of the Learned trial judge, the appellant has brought this interlocutory appeal.

In the appellant’s brief of argument settled by Emmanuel Onyishi, one issue was identified for determination as follows:
Whether on a dispassionate appraisal of the provisions of Order 5 Rule 1(5) and 27 of the Matrimonial Causes Act, the Lower Court was not in gross error when it held that the appellant’s non-compliance with the said provisions is an irregularity that could be waived.