In Nigeria, the Courts have in a plethora of cases struck out Matrimonial Causes Petitions for being grossly incompetent on the ground that the petitioner failed to comply strictly with the provision of Order V Rule 10(1) of the Matrimonial Causes Rules (hereinafter referred to as the MCR).
We will critically examine the legal implication of the failure of the petitioner to comply strictly with Order V Rule 10(1) of the MCR.
Order V Rule 10(1) of the MCR provides as follows;
“A petitioner shall, by affidavit written on his petition and sworn to before his petition is filed
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verify the facts stated in his petition of which he has personal knowledge.
The word used in the provision of the Matrimonial Causes Rules is “shall” which is strict and mandatory.
Where the words of a statute are clear, the court shall give effect to their literal meaning. See AG Ekiti State & Ors v. Victor Adewumi& Ors (2002) 1 S.C 47.
In the Supreme Court case of Nwankwo v. Yar’adua (2010) 12 NWLR (Pt. 1209) SC, on the literal meaning of the word “shall” as used in statutory provisions, the Court held per. Adekeye, J.S.C inter alia;
“…the foregoing is surely a mandatory provision because the operative word there is “shall”. The word shall when used in a statutory provision imports that a thing must be done. It is a form of command or mandate. It is not permissive, it is mandatory. The word shall in its ordinary meaning is a word of command which is normally given a compulsory meaning as it is intended to denote obligation”.
See also the cases of Adams v. Umar& Ors (2008) LPELR – 3591 (CA), Chief Sunday Obong v. Patrick Leo Edet& Anor (2008) LPELR – 8454, Onochie v. Odogwu (2006) 6 NWLR (Pt. 975) 65 @ 89-90, Tabik Investment Ltd. & Anor v. Guaranty Trust Bank Plc(2011) LPELR-3131(SC)
By virtue of the above cited cases laws, it is not in dispute that the word “shall” if given its literal and ordinary meaning as pronounced by the Courts makes it mandatory that the rule or provision must be obeyed. Order V Rule 10(1) of the Matrimonial Causes Rules makes it mandatory for the verifying affidavit to be written on a petition.
By the interpretation of Order V Rule 10(1), it is expected that the Verifying Affidavit be written on the petition as a continuous document before the petition is filed and not attached as a separate document to the petition with the heading of court, suit number and parties.
The position of the law is that the petitioner fails to swear to an affidavit written on the petition before the petition is filed, hehas not complied with the stipulated pre – condition for the commencement of the petition and so the action is incompetent and he cannot be heard.
In the case of Unegbu v. Unegbu (2004) 11 NWLR (Pt. 884) 332, the Court of Appeal in interpreting the provision of Order V Rule 10(1) and in striking out the petition held that it was mandatory for the petitioner to comply with the provision of Order V Rule 10 by writing an affidavit on his petition. The court also laid down the duties the said rule imposes on a petitioner as follows;
- a petitioner shall write an affidavit on his petition
- the affidavit shall be sworn to before his petition is filed.
- In that affidavit, the petitioner shall verify the facts stated in his affidavit of which he has personal knowledge
- In that affidavit, the petitioner shall depose as to his belief in the truth of every other fact stated in the petition.
The court went on to enunciate that the affidavit required by the rule is one “written on his petition”. The affidavit must be written on the petition which means that the petition and the affidavit are to be contained in the same continuous document.The court concluded that the rule requires the writing of one (the affidavit) on the other (the petition).
On the import of the above statutory provision, His Lordship, Mohammed, J.C.A, in Unegbu v. Unegbu (supra) reasoned thus:-
“The requirement of the rule in Order 6(3) of the English Matrimonial Causes Rules (applicable in Nigeria) and similar to Order 5 Rule (10)(1) of the Matrimonial Causes Rules, Cap 220, Laws of the Federation that a Verifying Affidavit shall be contained in the same document as the Petition and shall follow at the foot of or end thereof is mandatory. The operative word are “shall be contained in the same document and shall follows at the foot or end thereof.” The intendment of the rules is that the affidavit must follow immediately at the foot of the petition and that both the petition and the said affidavit must be contained in the same document in the sense that the affidavit document must be continuous document to the Petition. This is also the requirement contained in Order V Rule 10(1) of the Matrimonial Causes Rules, 1983. Thus where, as in the instant case, the verifying affidavit in support of the Petition is contained in a separate document, clearly headed with the suit number inserted, the fact of its having been sworn to on the same date of filing of the Petition notwithstanding, the Petition will be incompetent for non-compliance with the mandatory provisions of the Rules…..”
“EMPHASIS MINE”
Similarly, the Court of Appeal in the case of UmeakuanavsUmeakuana (2009) 3 NWLR (pt 1129) in striking out the petition and enunciating the duties imposed on the petitioner in respect of verifying affidavit in support of divorce petition held as follows:
- “A Petitioner shall write an affidavit on his petition for divorce;
- The affidavit shall be sworn to before his petition is filed,
- In that affidavit, the Petitioner shall verify the facts stated in his affidavit of which he has personal knowledge; and
- In that affidavit, the Petitioner shall depose as to his belief in the truth of every other fact stated in the petition.
The duties imposed on a Petitioner to my understanding are mandatory. By the requirement of the rule, the affidavit must be one written on the petition of the petitioner…”
In the case of Odusote v. Odusote (2011) LPELR – 9056 (CA) where Mohammed Garba J.C.A in striking out the petition and in interpreting the import of Order V Rule 10(1) while delivering the lead judgment held in paragraph D –G pg. 13 inter alia:-
“As a matter of fact, these provisions are very simple, unambiguous and clear. They require that a petitioner should swear to an affidavit on his petition before the petition is filed to verify that all the facts set out in his petition of which he has personal knowledge and then as to his belief in the truth of every other fact in the petition…..the use of the word “shall” ordinarily means that the provisions are mandatory because the word is used to express a command or directive which does not admit of discretion”
His Lordship went further to say in page 14 paragraph B that;
“The petition must as a requirement of the provisions, contain the affidavit sworn to by the petitioner before it is or can be properly filed.
The express and mandatory provision of the Matrimonial Causes Rules was even further reiterated in a more recent Court of Appeal case of Josiah Ayo Olabiwonnu v. Mrs Stella OlurantiOlabiwonnu(2014) LPELR – 24065 (CA).
Order v Rule 10(1)(a) of the MCR also makes it an additional requirement and duty of the petitioner to verify the facts stated in his affidavit of which he has personal knowledge.
The petitioner is expected to state in his affidavit which of the facts on his petition were derived from his personal knowledge. The petitioner must specify the paragraphs in the petition which contain facts within his personal knowledge and those paragraphs which contain information which he obtained from another person or source.
The provision of Order V Rule 10(1)(a) was interpreted in Umeaknana vs. Umeaknana (supra). There, the court held that the duty imposed on the petitioner under Order V, Rule 10 of the Matrimonial Causes Rules is mandatory and failure of the petitioner to verify the facts stated in his petition of which he has personal knowledge as required by the rules is fundamentally fatal to his petition as the rules of court particularly in divorce proceedings are highly technical in nature, and are meant to be and must be obeyed.
In the Umeakuana’s case (supra), the full text of the verifying affidavit reads:
“I, John Umeakuana, the Petitioner in the above mentioned petititon of No. 11, Niger State, Fegge, Onitsha, citizen of the Federal Republic of Nigeria, make oath and state as follows:
- That I am the petitioner in the above mentioned petition.
- That the statements contained in paragraphs 1,2,3,4,5,6,7,8,9,10 and 11 of this petition are true
- That the statement contained in paragraph 1-11 of this petition are true to the best of my knowledge, information and belief.
Signed
Deponent”
The learned Justices of the Court of Appeal held that the affidavit is scanty and that looking at it, there is nothing in both paragraphs 2 and 3 of that affidavit verifying the facts stated in the respondent’s petition of which he has personal knowledge. In other words, the respondent in his affidavit did not disclose which of the facts stated in his petition were derived from his personal knowledge, and those he got from other sources which is a distinct requirement. The appeal succeeded on this ground.
This was also the case in Unegbu v. Unegbu (supra) when the Court of Appeal went further in addition and held thus:
“where a petitioner in Matrimonial Causes matters has not disclosed in his affidavit which of the facts stated in his petition were derived from his personal knowledge, which is a distinct requirement, the petitioner’s affidavit has not met with this requirement plainly specified by paragraph (a) of Order V Rule 1 of the Matrimonial Causes Rules 1983”
The rules of court are meant to be obeyed and must be obeyed.
It has been held in a plethora of cases that rules or court are a guide to the proceedings of court and that they are meant to be obeyed.
It is imperative to reference the Court of Appeal per Tsamiya, JCA in Umeakuana v. Umeakuana (supra) p. 614, paras D – E where it was held that;
“It is important to note that the rules of Court particularly in divorce proceedings are highly technical in nature, and are meant to be and must be obeyed. I wish to remind Counsel to show some degree of care and caution when undertaking the conduct of proceedings on behalf of their clients. It is advisable that Counsel should make some efforts to look at and consider the effect of some of the relevant rules of court before embarking on proceedings. To do this certainly will cause them nothing”
However, there was a twist in the 2018 case of Ojeniran v. Ojeniran (2018) LPELR 45697 (CA).The Court of Appeal in the Ojeniran’s case while faced with the issue whether the provision of Order V Rule 10 should be strictly followed,agreed with the appellant that the use of the word “shall” in the provision it mandatory and is to be complied with as a condition precedent to the filing of the petition. However, the court flipped to the other side of the coin and made reference to the Matrimonial Causes Rules on the need of the Court to dispense with the need for compliance with the Matrimonial Causes Rules under Order XXI Rules 2 and 3 which provides as follows;
(2) Subject to these rules, non- compliance with these rules, or with a rule of practice and procedure of a court applicable under the Act to proceedings, shall not render proceedings void unless the court so directs, but the proceedings may be set aside, either wholly or in part as irregular, or may be amended or otherwise dealt with in such manner and upon such terms as the Court may think fit.
(3) Subject to the Act and to these rules – (a) A court may at any time, upon such terms as the Court thinks fit, relieve a party from the consequences of non – compliance with the Rules, with a rule of practice and procedure of the Court applicable to the proceedings or with an order made by the Court;
(b) A court may, upon such terms as the Court thinks fit, dispense with the need for compliance for compliance by a party with any provision of these Rules”.
The court held that the essence of the above provision is that non – compliance with any of the provisions of the Rules would not render the proceedings void but confers the court with the discretion to relieve a party from the consequences of non-compliance or dispense with the need for compliance by a party with any of the provisions of the rules. It was the position of the court that this is to ensure that substantial justice is done without deciding the parties’ case on technicalities as to form and not substance of the case.
The Court of Appeal posited that any non – compliance if at all, is an irregularity which should not be allowed to defeat the cause of justice.
In the total analysis, the court held that the petition which did not comply with the provision of Order V Rule 10 was competent before the lower Court.
CONCLUSION: The best way to obtain fair hearing and transparent justice is to allow the parties canvass their cases by methods that eschew technicality. The court should not sacrifice the purity of justice in the altar of technical subterfuge which seeks to emasculate the fairness of a trial in all its ramifications by slavish obedience to the rules of Court which are no more than guidelines to help the court in judicial administration. At the moment, there is no Supreme Court decision to lay the issue of non-compliance with the provision of Order V Rule 10 of the MCR to rest even as the Court of Appeal have given various conflicting decisions as illuminated above.It is the writer’s opinion that non-compliance with the provision of Order V Rule 10 of the MCR is an irregularity which does not affect the substance of the case and should not render the proceedings nugatory particularly in consonance with the provision of Order XXI Rule 2 and 3. However, a petitioner is expected to be diligent in preparing his matrimonial petition and is advised to write his verifying affidavit on his petition and specify the paragraphs in the petition which contain facts within his personal knowledge and those paragraphs which contain information which he obtained from another person or source, as it is far better to err in the side of caution.
About the author
This article is written by Iberedem Obot, Esq., a Legal Practitioner practicing in Uyo, Akwa Ibom State
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