Evelyn Ariolu V. Kenneth John Ariolu (2006)

LawGlobal-Hub Lead Judgment Report

VICTOR AIMEPOMO OYELEYE OMAGE, J.C.A

In this appeal, the appellant seeks a reversal of the ruling of the High Court sitting in Port Harcourt, Rivers State coram C.I. Uriri, J. the ruling was delivered on 30/7/2004. By the application before Uriri, J., the application sought the setting aside of a divorce proceeding which purportedly took place on 8th November 1985.

The facts of the earlier proceedings are as follows: On 22nd March 1975, the applicant in the application before Uriri, J., entered into a marriage with Kenneth Chikwe Ariolu. At the time the applicant was a spinster. A certificate of marriage under the ordinance was issued to the parties. the children of the marriage were named as Flora Kenneth Ariolu, female born on 10/9/1996, (ii) Anoriochi Kenneth Ariolu, female, born on 22nd May, 1978, and (iii) Kinikachi Chijioke Ariolu, male, born on 7/6/1981. After a furious skirmish in the magistrate court in which a welfare officer referred the disagreement of the parties to the marriage was made initially for two older children. Deposition in the affidavit sworn to shown that quarrel ensured between the couple, and the wife Evelyn Ariolu, and she went to live in the house of her parents. One the intervention of both parents of the couple, the wife Evelyn returned to her matrimonial home. The reason for leaving the matrimonial home in the first instance she is because the husband pursued her with a knife on an allegation that after two issues for him, she did not produce a son; and that the husband had brought into the matrimonial home a woman named Iyerikabo Beauty Okujagu into the house. Meanwhile a child was born, who is a boy; and Evelyn agreed to move back into the matrimonial home. At the time Evelyn moved into the house, her deposition showed that her home had been taken over by the other woman; she had therefore to manage in the three rooms provided for her by her husband Kenneth in the same premises. She deposed further that, they, she and Kenneth lived together as husband and wife. She cooked for him and he ate her prepared food. She said on one occasion she was persuaded by her husband to visit her parents or relations at Owerri with her children. On her return to her matrimonial home sometime in 1983, she received a summons from the magistrate court to evict her from the three rooms accommodation in her husband’s house. She deposed thus in 5 paragraphs of affidavit in PHC/4D/83, file on 9/12/83 viz; “That Friday 6th June 2003 was the first time that my counsel B.F. Omidina informed me and I verily believe him that my husband Chief Kenneth Ariolu through his counsel served my solicitor a notice of preliminary objection and an affidavit in support accompanied by a decree for dissolution of the marriage between us dated 8th November 1985 said to have been instituted before the Honourable Justice P.G. Okara in suit No. PHC/4D/83; etc; etc. (2) That, Friday June 6 was the first time that I ever heard that my husband instituted any divorce proceedings against me. I was not present in the court throughout the alleged divorce proceedings because I was not award of any court proceedings against me. (3) That on receipt of this information on the divorce subject on 6/6/2003, I was overwhelmed with shock and rushed to my father in law (my husband’s father) and his other family members at No.28 Ngeche Avenue, Oginiba, port Harcourt to complain. My father in law expressed bewilderment an disbelief at the news, and confirmed he knew of no such divorce proceedings. An affidavit by my father in law is attached herewith, marked Exhibit E.

In par. 10 Evelyn Ariolu deposed thus: “I never received any notice of petition at any time from my husband or any other person” Par.14. “I do not know, I have ever seen nor have I ever briefed one CAC Uche of 22 Pound Road, Aba, noted in the paper as my counsel, as there was no time I ever lived in Aba, neither did I ever ask CAC Uche or any lawyer to appear for me on the purported petition for divorce or any law suit for that matter.” Par.16, she deposed further: “I have never seen CAC Uche before and could not have gone to see him with my people as was alleged in line; nor did I collect any papers from him because I did not know of any divorce proceedings going on.”

In par. 15; The wife of Ariolu, deposed thus: ” CAC Uche did not know me either. A letter retrieved by my current Counsel from the file of the welfare officer, urging me to contact him (the lawyer) through the welfare office; the letter is dated 16/8/1984; whereas in the Registry of the High Court; Exhibit G1, he had signed a response to the petition as my counsel. This is dated 23/5/83; even before his leter inviting me through the welfare officer to see him.”

The respondent to the motion, Mr. K. Ariolu, denied all the averments made by the applicant to set aside the divorce proceedings, Meanwhile at the commencement of the proceedings the Respondent’s counsel applied for a divorce absolute of the marriage. It was granted.

In his submission before Uriri, J., The Respondent urged the court to dismiss the application, saying 19 years have elapsed since the decree dissolving the marriage had been made, and that the delay has robbed the applicant of his right.

To the applicant’s motion filed on 27/4/2004 the respondent filed a response dated 14/5/04; and the appellant file a reply on a point of law. The disparity in dates of the process is because the applicant withdraw and substituted another motion for the one filed erroneously on 9/12/2003. In his ruling the trial judge refused the application to set aside the order of decree absolute of the marriage, and ruled that he did not believe that the legal profession had degenerated to level that the applicant had described it. He ruled “there is no gainsaying that the applicant had a pre-knowledge of the suit at least as at 6th August 1990, when Chez Akalonu sought and applied for the record of proceedings that is fourteen years with effect from the date she got wind of the suit; against this background it is trite that equity does not aid the indolent. On a calm appraisal of the processes of court, there is no gainsaying that the applicant had pre-knowledge of the suit which is to say she was duly served with the processes of court. For this proposition I am emboldened by the endorsements as reflected by several pages of the case file. In consequence the trial court held: “In the light of these facts. I am disinclined to disbelieve the painted stories of the Respondent/Applicant in urging this court to set aside the well considered judgment of my brother judge Okara, J. (as he then was) delivered sometime in 1985. I mean to say in the face of available fact I am unable to believe the fantasies.” “From comparative analysis of the legal profession world over. Nigerian Bar is second to none. I am therefore yet to believe that the legal profession in this country has degenerated to the acclaimed level of decadence. I therefore take the view that the plethora of authorities cited by the applicants’ counsel are inapplicable some not being relevant.” The trial judge concluded. “The action was commenced twenty one years ago, while on 8/11/85 the court in its wisdom and judgment decreed wise. That was 19 years ago, while the current motion to set aside was initiated 9th December, 2003. I take the view that this is one of such application that ought to be checked and as such destined for dismissal. It is accordingly ordered.”

The applicant was dissatisfied with the ruling of the court in dismissing his application; she has filed this appeal. The appellant’s brief was filed on 19/10/2005. She formulated five issues from the four grounds of appeal. The four grounds of appeal are contained on pages 123 to 125 of the record of proceedings. The five issues formulated by the appellants are on page 11 of the appellant’s brief of argument.

The issues formulated are more than the grounds of appeal filed. This is unacceptable to the rules in the court of appeal which forbids proliferation of issues; and argument on grounds of appeal is not permitted. See MACAULAY v. NATIONAL MERCHANT BANK LTD (1990) 4 NWLR (Pt.144) P.283 at 321. The Court of Appeal and the Supreme Court take a disfavourable view of proliferation of issues. Where this occurs, the court is entitled to adopt the issues formulated only on the feasible ground of appeal for determination of the appeal. See per Orah, JCA in STYM NIGERIA LTD v. GADZAMA (1995) 7 NWLR (pt.409) at 305.Before I decide which issue to jettison it is seemly to estate all the said issues so formulated. They are: “(1) Whether the learned trial judge was right to have taken judicial notice of: used and heavily relied on the letters of Chez Akalonu Esq of 6 and 7 August 1990 said to be on pages 53 and 54 of the case file so as to impart pre-knowledge of the divorce proceedings to the appellant when those unverified letters were not pleaded by the Respondent and did not form part of the record of proceedings. (2) Whether the learned trial judge correctly assessed and evaluated his decision that the appellant receive the court processes on the divorce proceedings and was aware of the suit. (3) Whether the learned trial judge was right when he failed. Refused or neglected to call oral evidence to ascertain the truth particularly with the applicant’s vehement denial on oath that she neither knew nor briefed learned CAC Uche or any other lawyer on the divorce proceedings as contained in paragraph 14 of her affidavit. Issue 4. Whether the learned trial judge was right in not taking into consideration in his ruling the fact that the Respondent committed an illegal act in marrying a second wife Iyerikabo Beauty Okujagu during the subsistence of the valid marriage and the respondent should not have been further aided by the court of law in the dispensation of justice. (5) Whether the length of time is a bar to relief in the case of fraud concealed against a party who was ignorant of such fraud and whether the learned trial judge was correct to rule that the appellant (applicant) who continuously lived with the Respondent till she heaerd on 6/6/03 of the decree of dissolution of the marriage could be said to have slept over her right for 14 years.”

I seem to me that issue 4 stated above is inappropriate to the issue to be determined; it is also a surplusage, being in excess of grounds of appeal filed; issue 4 in the appellant’s brief is hereby struck out.

The Respondent’s brief was filed on 21/1/2006 in which he formulated two issues namely: ” (1) whether the learned trial judge was right to have taken judicial notice of his record. (2) Whether the learned trial judge ought not to have set aside the judgment dated 8th November, 1985 delivered by Hon. Justice A.P.G. Okara rtd and late.

In this appeal, and considering the issues formulated by the appellant and of the Respondent; the Respondent formulated two issues, encapsulate the issues to be determined in this appeal. Consequently issues 1 ,2,3 and 5 of the appellant when shorn of their semantics convey the same meaning which, is looking at the records and processes viewed by the trial court can it be said that the motion to set aside the divorce proceedings of 1985 was served the necessary processes before commencement of the divorce proceedings. (2) Whether oral evidence should have been called by the judge to resolve the conflict in the affidavits touched. (3) Whether the long delay in the conflict in bringing the application to set aside the divorce proceedings is a bar to the prayers sought by the applicant.

In his brief, the appellant submitted that the trial judge was wrong to have taken judicial of, and to have relief on the letter of chez Akalonu dated 6 and 7 August 1990 in assuming his conclusions on the ground (1) that the applicant was aware of the divorce proceedings (2) That the applicant was served with the process of the court; and (3) That the applicant retained the services o a solicitor to defend her case, when the contents of the affidavit were at variance with such conclusion. The letter of Chez Akalonu referred to on pages 53 and 54 of the record have nothing to do with the divorce record of court proceedings. In response the respondent submitted in his brief that the court has a inherent the power to look at its record. Respondent, Mr. Ariolu urged the court to take judicial notice of same; and rule thereon.