MR. Uduak Etim Okon V. MR. Ekaette Uduak Okon (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOJEED ADEKUNLE OWOADE, J.C.A.(Delivering the Leading Judgment)

This is an appeal against the decision of B. F. Etuk, J of the High Court of Justice, Akwa Ibom State in the Oron Judicial Division delivered on 17th day of December, 2012.

The Appellant who was Petitioner in the Court below filed a petition for divorce against the Respondent on 22/11/2010. The Appellant as Petitioner applied to the Court on 6/1/2011 to set the petition down for hearing as undefended petition. The Learned trial Judge proceeded to try the petition and took evidence from the Petitioner only as PW1. When again the Respondent did not respond to service of processes on her, Appellant’s counsel was called upon to address the Court.

The Learned trial Judge delivered Judgment in the petition on 17/12/2012 and therein struck out the petition of the Appellant Petitioner. The reasoning of the Learned trial Judge in striking out the petition would be found at pages 30-31 of the record of appeal which I quote extensively as follows:

“… I have observed that the petition is not dated but was signed by Counsel. I have seen a document titled “AFFIDAVIT OF UDUAK ETIM OKON”. I

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have seen the office endorsement on the said affidavit. It does not matter that the petition is not contested, the Petitioner is required to comply with the strict rule of the Matrimonial Causes Rules Order V Rule 10 (1) provides:

“A. Petitioner shall by an affidavit written on his petition and sworn to before his petition is filed.

B. Verify the facts stated in his petition of which he has personal knowledge and

C. Depose as to his belief in the truth of every other fact stated in the petition.

This rule relates to the use or requirement of a verifying affidavit in a petition for divorce. The above rule is mandatory. The affidavit and a petition are to be contained in one continuous document. There is nothing on the affidavit of the Petitioner verifying the facts stated in the petition which the Petitioner has personal knowledge of. For failing to be in compliance with the provisions of Order V Rule 10 (1) of the Matrimonial Causes Rules 1983, the Petition is struck out…”

Dissatisfied with the above Judgment the Appellant through his Counsel filed a notice of appeal containing two (2) grounds of appeal in this Court on 18/2/2013. On

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19/11/2015, the Appellant obtained the Order of this Court to hear this appeal on the Appellant’s brief alone for failure of the Respondent to file a brief of argument. Learned Counsel for the Appellant adopted his brief of argument in this honourable Court on 24/10/2016. Two issues were nominated for determination in the Appellant’s brief of argument. They are: