Chief Mrs. Rita Nnenna Ofoma V. Chief Gabriel Sunday Ofoma J. P. & Anor (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

SIDI DAUDA BAGE, J.C.A. (Delivering the Leading Judgment)

This is an Appeal against the Judgment of Hon. Justice R.N. Pemu (Mrs.) (as he then was) sitting at High Court of Delta State, at Effurun Judicial Division, delivered on the 29th day of November, 2005 in which the Appellant was the Respondent. The Notice of Appeal filed by the Appellant to initiate this action is dated the 19th of January 2006 and contains nine (9) Grounds of Appeal.

The background facts to this action is as follows:

The Petitioner/Respondent filed a petition on 18th February 2005 praying the court for the dissolution of the marriage between the Petitioner/Respondent and the Respondent/ Appellant. The Petitioner/Respondent alleged in his petition that the Respondent/Appellant left the Matrimonial home on 18th October 2002 in the absence of the Petitioner/Respondent. Without waiting for effluxion of the period of three years as provided in Section 15(2) (f) of the Matrimonial Causes Act LFN 2004, the Petitioner\Respondent filed the petition on 18th February 2005, less than 3 (three) years from the date of the alleged living apart. The Petitioner/Respondent relied on the alleged living apart for 3 years as ground for filing the petition in proof that the marriage has broken down irretrievably.

The Respondent/Appellant upon being served with the petition filed a reply/answer to the petition and timeously raised jurisdictional issue in the reply/answer. See pages 15 to 28 of the record of appeal. The Respondent/Appellant timeously filed the motion and affidavit in support raising the issue of:

(a) non-compliance with the Matrimonial Causes Act and the Matrimonial Causes Rules in that no certificate relating to reconciliation as known to the law was filed by the Petitioner.

(b) No fees were paid in the petition as the fees paid on the incompetent certificate is null and void. See page 29 of the record of Appeal.

The Respondent/Appellant also prayed for the transfer of the petition to High Court holden at Anambra State. See page29 of the record of Appeal. The motion is supported by an affidavit of 31 paragraphs filed on 17th March 2005. On the 15th of April 2005, and 16th of May 2005 and 27th May 2005 respectively, the Court took argument from Counsel for the parties. See pages 68 to 71, 74 to 80. On 20th day of July 2005, the Court’s Ruling dated 23rd June 2005 was read in open Court dismissing the motion on Notice filed by the Respondent/Appellant.

The Respondent/Appellant filed an appeal against the said Ruling. See page 93 to 98 of the record. After the Ruling of 20th July 2005, the Respondent/Appellant, filed a motion on Notice for stay of proceedings pending the determination of the Appeal filed against the said Ruling of the Court of 20th July 2005. The motion for stay was supported by an affidavit of 30 paragraphs. This affidavit was unchallenged and uncontradicted. See pages 99 to 103 of the record of Appeal.

On 11th August 2005, the trial Court took the argument of the parties and thereafter delivered a ruling dismissing the application of the Respondent/Respondent for a stay of proceedings. The Notice of Appeal was in the Court file and duly paid for, the Court was of the view that it must be exhibited, an attempt to obtain an adjournment to exhibit the Notice of Appeal in a further affidavit against the Ruling of the Court was refused. After the dismissal of the application for stay of proceedings on the said 11th April 2005 – pages 104 to 106 of the Record of Appeal, the Court called on the Petitioner/ Respondent to open his case. The Petitioner/Respondent commenced his case immediately. See pages 106 to 109 of the record. It is significant to note that the Co-Respondent/Respondent was not served by the bailiff of the High Court of Effurun with any of the motions. The Co-Respondent did not partake in any of the interlocutory applications. The Co-Respondent did not also know nor was he informed after the Ruling of 20th July 2005 that the suit had been adjourned and that hearing will commence on 11th August 2005. No application to set down the petition was made as required by the mandatory provisions of the Matrimonial Causes Rules. The Court suo motu and contrary to the Special Provisions of the Rules of Matrimonial Causes Rules fixed a date for the hearing of the petition and without the knowledge of the Co. Respondent and against the Appellant’s right as specifically provided in the Matrimonial Causes Act and Matrimonial Causes Rules LFN 2004. Order XI Rule 40 to 49.

After the proceeding of 11th August 2005, the Court adjourned the suit to 12th October 2005, for continuation of hearing. On 12th October, 2005, the motion for stay of proceedings filed at the Court of Appeal against the Ruling of 20th July 2005 was before the Court, yet notwithstanding same, the Court refused to respect the motion for stay pending in the Court. It is significant to note that the motion for stay of proceedings filed in the Court of Appeal was in the Court file at pages 116 to 120 of the Court file at the High Court of Justice holden at Effurun, surprisingly, the record of Appeal before this Court did not include the two motions duly served the Registrar of the Court and brought to the attention of the Court below in respect of the applications before the Court of Appeal for stay of proceedings. On 12th October 2005, the suit was adjourned to 2nd November 2005, the Court did not sit due to Public holiday declared for Muslim festival. The Court suo motu adjourned the suit to 11th November 2005 without hearing notice to the Respondents therein. It was the insistence of the trial Judge to proceed with the hearing of the divorce petition notwithstanding the pendency of the motion for stay of proceedings at the Court of Appeal that precipitated the protest letters as shown at pages 115 to 123 of the Record of Appeal. This was also against the statutory duty of the Court as provided in Section 11 of the Matrimonial Causes Act to promote the reconciliation of the Petitioner and the Respondent.

The trial Court was aware of these court processes at the Court of Appeal as seen from the record of the court of 11th day of November 2005 at page 125, yet on the said 11th November 2005, the Court refused to adjourn the suit notwithstanding the protest as to date as well as the Certificate of sickness of O. J. Nnadi of Counsel, the Court proceeded to hear Counsel for the Petitioner/Respondent who addressed the court. The Petitioner/Respondent stated specifically at page 126 of the Record that the Petitioner/Respondent does not want damages against the Co-Respondent. The Court after the address of Counsel for the Petitioner/Respondent adjourned the case to 29th November 2005 for judgment. The Respondent/Respondent filed another motion in the Court of Appeal and duly served same on the Assistant Chief Registrar, High Court of Justice Delta State holden at Effurun. (Again this motion for stay is missing from the record of the appeal) for interim stay of proceedings of the suit at the High Court pending the hearing and determination of the motion on Notice fro stay of proceedings which was before the Court of Appeal. The motion for stay of proceedings was fixed for 7th December 2005 whilst the motion for interim stay of proceedings pending the hearing of the motion on Notice fixed for 7th December 2005, was fixed for 24th November 2005. On 24th November 2005, the Court of Appeal, adjourned the motion for stay of proceedings to 5th April 2006 on ground of non-service on the Co-Respondent. Notwithstanding the two motions for stay pending at the Court of Appeal, the trial Court on 29th November 2005 delivered the Judgment in the above suit. It against this Judgment, that the Respondent/Appellant filed the Notice Appeal at pages 153 to 160 of the Record of Appeal. From the said Notice of Appeal, the Appellant distilled the following six (6) issues for determination as follows:

“(i) Whether the uncontradicted and unchallenged evidence of the Petitioner/Respondent as held by the Court was sufficient to cure the defect of non-fulfillment of the requirement of Section 15 (2) (a) (b) (c) and (f) of the Matrimonial Causes Act LFN 2004 relied upon by the Petitioner including its particular Section 15 (2) (f) of the Matrimonial Causes Act which requires that the parties must have lived continuously apart for 3 (three) years. See grounds 2, 3 of Appeal at pages 154 and 156 of the record of Appeal.

(ii) Whether the Court can rely on hearsay evidence to enter judgment for the Petitioner/Respondent because the hearsay evidence is “unchallenged” and uncontradicted thus particularly for the adultery that the Respondent/Appellant was found to have committed with the Co-Respondent (Dr. Chris Okoye). (Grounds 4, 6 and 7 of the Notice of Appeal at page 155 and 157).