Lovina Ifeoma Ebe V. Edwin Ebe (2003)

LawGlobal-Hub Lead Judgment Report

SULE AREMU OLAGUNJU, J.C.A. 

The appeal is from the decision of Nebo, J., of the Enugu Judicial Division of the Enugu State High Court in which the divorce petition filed by the respondent before this court as the husband of the appellant herein praying for dissolution of their marriage was granted and the marriage was dissolved upon order nisi granted on 1/12/97 that became absolute three months later.

The facts from which the dispute arose are succinctly that following failure of the appellant to reply to the respondent’s petition until about 21 days after the time stipulated in the notice of petition to do so the petition was heard as an undefended suit but without putting the appellant on notice of the proceedings.

On the events leading to hearing of the suit as undefended, it is common ground that the notice of petition to which a sealed copy of the petition was attached was filed on 24/3/97 in paragraph 9 of which the appellant as the respondent was enjoined to file an answer with her address for service within 20 days after the service of the notice on her or within such extended time as might be allowed by the Matrimonial Causes Rules. It is also common ground that the following steps taken by the parties and the court below culminated in the trial: on 30/4/97 the petition was duly served on the respondent; on 5/6/97, (a) the petitioner applied (on Form 31) that the action be set down for trial as an undefended suit; (b) the registrar issued registrar’s certificate (Form 34) that the suit was ready for trial and followed by a notice of trial (Form 33) setting down the suit for trial on 13/6/97 at the High Court No.5; (c) on 13/6/97 the case was mentioned in court but at the instance of the petitioner’s counsel it was adjourned to 27/6/97 for hearing and (d) on 18/6/97 the appellant as respondent to the petition filed her answer to the petition.

Against this background, the trial began on 27/6/97 and continued on 23/7/97 with learned counsel for the petitioner addressing the court on 30/7/97 when the case was adjourned to 22/10/97 for judgment which was eventually delivered on 1/12/97. Thus, the appellant who filed her answer to the petition without leave of the court was absent from the court throughout the proceedings. In any case, as I noted earlier, the suit was heard as undefended at the end of which the petitioner was granted a decree nisi on 1/12/97 which was deemed by operation of law to be absolute on 1/3/98. On 7/5/98, the respondent to the petition filed a motion praying the trial court to set aside the judgment of 1/12/97 and to hear the case afresh because the respondent was not aware of the proceedings of the trial court as she was not put on notice of the trial and that the news about the divorce proceedings at the trial court filtered through to her as rumours when the petitioner was bragging about his impending marriage to another woman. The application was refused by the learned trial Judge on the grounds that (a) the respondent having failed to obtain leave of the court before filing answer to the petition out of the stipulated time the suit was rightly tried as an undefended action for which there is no duty on the court under the Matrimonial Causes Rules to put the respondent on notice of the hearing and (b) the application was not brought within a reasonable time.

Dissatisfied with the judgment of the trial court, the respondent before that court who is the appellant before this court is challenging the decision on 4 grounds of appeal from which she formulated for determination the following 4 issues:

“(1) Whether the trial court was right to have heard the petition in the absence of the appellant who was never informed of the court of hearing and the date of hearing; and was never aware that proceedings were going on?

(2) Whether the trial court was right to have heard the petition when the said court did not firstly make an order dispensing with the naming, of the unnamed adulterers alleged in the petition?

(3) Whether the trial court was right to have proceeded to hearing of the petition when some named adulterers were not made parties to the petition?

(4) Whether the trial court was right in giving judgment to the petitioner when the latter did not meet the standard of proof required in dissolution of marriage based on adultery?”

The appellant having attested that the respondent’s counsel was duly served with the appellant’s brief of argument on 6/11/2001 but no brief of argument was filed by the respondent till the time to do so ran out the appellant applied and was granted permission that this appeal be heard on the appellant’s brief of argument alone. The implication is that the respondent would be deemed to have admitted the truth of everything said in the appellant’s brief in so far as such is borne out by the record but not without a critical appraisal of the truth: see Lagricom Company Ltd. v. Union Bank Ltd. (1996) 4 NWLR (Pt.441) 185, 196. I must also add as a rider that the appellant’s submissions on points of law would be carefully sifted so as to be satisfied that notwithstanding the respondent’s tacit abandonment of the appeal not only by not availing this court of his own side of the story by filing no brief of argument but also by not appearing in court, the default would not deflect the traditional dispassionate poise of justice that is guided by candour and fairness conceding shortcomings as a chink in human armour. Accordingly, this appeal will be considered on the appellant’s brief of Argument alone and to this end I will begin with issues 2 and 3 taken together.

On issue 2, learned counsel for the appellant contended that the lower court was in serious error of law in setting down the petition for hearing when the petitioner did not obtain court order to dispense with the naming of certain persons alleged in paragraphs 8E, 8H, 8I, 8J and 8K of the petition to have committed adultery with the respondent as provided by rule 3 of Order IX of the Matrimonial Causes Rules. Getting the necessary dispensation not to name the unknown adulterers, he contended, is a condition precedent to setting down for hearing a petition for a decree of dissolution of marrrriage and submitted that failure to fulfil the condition precedent before hearing the case robbed the trial court of jurisdiction to entertain the action. Therefore, he urged this court to hold that it is an irreversible error which vitiates the trial.

The substance of the argument on issue 3 which is complementary to issue 2 is that the petitioner having alleged in paragraph 8C and 8D of the petition that two men called ‘Ugochukwu’ and ‘Uche’ committed adultery with the respondent the two adulterers must be made parties to the action by virtue of section 32 of the Matrimonial Causes Act, Cap. 220 of the Laws of Federation of Nigeria, 1990. In further support of his argument he cited sub-rule 4(2)(b) of Order IX of the Matrimonial Causes Rules, albeit inappropriately as the petition under review is not an amended one contemplated by that rule the names of Ugochukwu and Uche having been expressly mentioned in the petition. However, he submitted that as the two named adulterers were not joined as parties the action is not properly constituted and, therefore, incompetent.

As a primary point, issue 3 deals with the constitution of the action that is centered on section 32(1) of the Matrimonial Causes Act, Cap. 220 of the Laws of Federation of Nigeria, 1990, which provides as follows: