Aderemi Adedamola Ajidahun V. Mrs. Daphine Oteri Ajidahun (2000)

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GALADIMA J.C.A.

The respondent was the petitioner in Suit No. WD/195/95 before the Lagos High Court. She filed a petition against the appellant for decree of dissolution of marriage on the sole ground that the marriage has broken down irretrievably by reason of the parties to the marriage having lived apart for a continuous period of at least three years immediately preceding the presentation of the Petition.

On 13th February, 1997, the trial Judge granted an order of Decree Nisi for the dissolution of the marriage between the appellant and the respondent. He also granted custody of the only child of the marriage to the petitioner. The responsibility for the education of the child from kindergarten school to the University Education level and the cost of such education was to be borne by the petitioner, while the appellant had free access to the child during reasonable hours of the day.

The appellant was dissatisfied with this judgment and has accordingly brought this appeal against it. Two Grounds of Appeal were filed. Parties exchanged Briefs, appellant further filed Reply Brief. In his Brief the appellant identified two issues for determination as follows:

1. Whether the appellant was denied fair hearing and if a miscarriage of justice has occurred?
2. Whether the refusal to hear the appellant was not a perversion of the undefended divorce procedure:”

The respondent on the other hand formulated a single issue for determination as follows:

“Whether in the light of facts of this case, the trial judge was right in law in proceeding to hear the divorce petition as undefended and if any miscarriage of justice has occurred.”

It is needless for the Appellant to fragment or split issues. They are merely repetitive. I am of the view that the simple and single issue Formulated by the Respondent above will determine this Appeal.

The appellant raised the issue of fair hearing which is fundamental in any judicial proceedings. The learned trial judge compelled by the antecedents of this matter proceeded to hear the petition as undefended. Whether the appellant was given reasonable opportunity to present and defend his case, this will be found from the peculiar facts of this matter as presented before the lower Court and the analysis of the Rules of the Court that govern matrimonial proceedings.

The facts presented before the lower Court were simply this. The respondent filed her petition on 31/1 0/95 for dissolution of her marriage with the appellant celebrated on the 26th October, 1991. After all relevant documents (which will be referred to later in the course of this judgment) had been served on the Appellant and he failed to file any document to challenge the petition the Registrar set down the petition for trial at the lower Court as undefended. At a stage the respondent brought a motion for accelerated hearing of the undefended petition. On the 10th day of February, 1997 the motion was heard and an order for an accelerated hearing of the petition was granted and the hearing of the petition was fixed for the 12th day of February, 1997. On that date the respondent appeared in Court with her Counsel but the appellant was absent in Court. However, his counsel who appeared in Court applied for an adjournment of the hearing of the Suit. Learned trial judge took arguments from both counsel and having been satisfied that the appellant had earlier filed a petition for dissolution of the marriage in another Suit in 1994 and it was struck out for want of diligent prosecution, he decided to proceed with the hearing of the petition and accordingly refused to grant an adjournment.

Consequently, the learned trial judge gave judgment in favour of the respondent. Learned Counsel for the appellant has contended that the appellant was denied fair hearing and as such this has occasioned miscarriage of justice. He made the following submissions:

(i) That even if the Court would have reached the same decision after hearing the appellant, the obvious denial of fair hearing is a substantial fault in the determination and the proceedings are a nullity. He relied on the case of African Continental Bank v. Losada (1995) 7 NWLR (Pt. 405) 26 at 53.

(ii) That the conduct of the trial in the lower Court was contrary to principle and practice of the Court. That the Court ought to have heard first the motion for extension of time before deciding that the suit in which he ordered service of hearing notice on 10/2/97 has suddenly become undefended on 12/2/97. Relying on the case of Mohammed v. Masawa (1985) 3 NWLR (Pt.11) 89 at 96, the learned counsel submitted that the Judge’s view that the motion for extension of lime was not before him was not significant as he ought to have had the motion indicated by Counsel from the bar, brought from the Registry.

(iii) That the learned trial judge ought not have heard the petition as an undefended ex-parte action even in the presence of the appellant.

(iv) That beyond the manner ill which the trial was conducted, there was no proper service of any process including the petition itself, because;