Verifying Affidavit must be Endorsed on Petition to activate the Jurisdiction of Court in Divorce Proceedings – O.G. Ogbom, Esq.

Jurisdiction is the blood that gives life to the survival of an action in a court of law, and without jurisdiction, the action will be like an animal drained of its blood. It will cease to have life and any attempt to resuscitate it without infusing blood into it will be an abortive exercise-  So sayeth the Court in Utih v. Onoyivwe (1991) 1 NWLR [Pt. 166] 166 SC.

By the provision of Order V Rule 10 (1) of the Matrimonial Causes Rules CAP M7 Laws of the Federation of Nigeria 2004, it states thus:

10. Petitioner to be Verified

(1) A petitioner shall, by an affidavit written on his petition and sworn to before his petition is filed
Verify the facts stated in his petition of which he has personal knowledge; and
Depose as to his belief in the truth of every other fact stated in his petition.
On the other hand, Order VII Rule 11 (1) of the same Rules provides as follows:

11. Affidavit verifying pleading.

(1) The party filing a pleading shall, by an affidavit written on his pleading and sworn to within twenty-one days before his pleading is filed –
Verify the facts stated in his- pleading of which he has personal knowledge; and
Depose as to his belief in the truth of every other fact stated in his pleading.

From the above provisions, it is clear that for there to be a competent Petition before the Court, the Rules have imposed on the petitioner certain obligation with respect to his verifying affidavit. The Court of Appeal pointed out this obligation in Umeakuna v Umeakuna (2009) 3 NWLR (Part 1129) Page 598 particular at page 612 when the Court stated thus:

A careful perusal of the above rule will reveal that the duties imposed on a petitioner are 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 personal belief in the truth of every other fact stated in the petition.
The above was also stated in the case of Unegbu v Unegbu (2004) 11 NWLR (Pt 884) 332.

Order V Rule l0 (1) and Order V11 Rule 11 (1) have been interpreted to be mandatory provisions which non-compliance renders the petition a nullity and void.

It is the law, and one settled beyond doubt that in Matrimonial Cause Proceedings, the affidavit verifying the facts of the petition are not contained in an entirely different document which equally has the same heading as the petition with a suit number inserted and the names of the parties appearing therein. Any affidavit verifying facts in a petition that is written on a separate document and headed accordingly with title and suit number of the petition, is void and incompetent and liable to be struck out.

It is submitted therefore, that in matrimonial causes procedure, the intention of the legislature is that affidavit verifying the facts in the petition shall form part of what can be called a continuous flow of the rhythm of the petition id est forming one document; when it is not so, the Court of Appeal has held that the said affidavit is said to be filed outside the petition.

In the case of Unegbu V Unegbu (2004) 11 NWLR (PART 884) 332 & 364 ), a distinguished Learned Senior Advocate, filed a verifying affidavit on a separate sheet of paper clearly and separately headed “IN THE HIGH COURT OF ANAMBRA STATE, IN THE ONITSHA JUDICIAL DIVISION HOLDING AT ONITSHA” with suit number inserted, the Court of Appeal upheld the objection raised in respect of the validity of the suit and struck same out.

In Unegbu V Unegbu (2004) 11 NWLR (PART 884) 332 & 364 ), the view of the Court of Appeal with respect to filing a verifying affidavit on a separate sheet of paper with the heading in the name of the court and the suit inserted therein is quite instructive.

In the same Unegbu V Unegbu (2004) 11 NWLR (PART 884) 332 $364 paragraphs C-6, the Learned Justice Pats-Acholonu, JCA (as he then was) said,

I have carefully examined the import of this rule. Is the manner adopted by the petitioner respondent the correct proceeding, where the relevant content to wit, the verifying affidavit is completely not connected to the petition except by reference made to it. I think not. I have indeed endeavoured to be persuaded by the argument of the Learned Counsel for the respondent but much as I tried, I am not so persuaded. This is the usual case, where. I believe the tone of the wordings of the statute sends out a message that it should be done in that way. Besides there is a need to bring certainty to this aspect of the law in Matrimonial Causes so that in future counsel filing this sort of document should be careful enough to reflect the verifying affidavit “on” the petition “not outside” the petition. What I am saying is that, apart from the required heading “in the matter of the petition (name of the petitioner) which in this case is Emmanuel Chike Unegbu, see Gapp V Bapp & Leverson (1859) 4 SW 2 T 2781 164 E£ 152 and followed in Steed V Steed (1864) LR 1 Pb 364, the verifying affidavit should not bear the heading of title “in the High Court of …” for that matter, because the verifying affidavit should and ought necessarily by the operation of the law be made to be part (wholly of entirely) of the petition. This obviously is not the case here.
In the circumstance, I allow the appeal and set aside the ruling of the lower court and strike out the petition of the petitioner”

The above stated dictum of Pats-Acholonu, JCA (as he then was) was further fortified by the unimpeachable postulation of Olagunju, JCA at page 365, paragraphs B-H of Unegbu V Unegbu (Supra) wherein he posited thus:

Against this background, I agree with the conclusion in the leading judgement that by no stretch of imagination can filing a separate affidavit be said to satisfy the prescription by sub-rule 10 (1) of Order V of the rules that the affidavit must be written on the petition notwithstanding the force of the semantics that have been brought to bear on the interpretation of the phrase an affidavit written on his petition” in that sub-rule with a view of equating that phrase with setting the verification down on a separate affidavit.”

The court went further, that the second requirement the affidavit of the petitioner must satisfy is that, it shall be sworn to by the petitioner before filing his petition. Looking at the records (exhibit A) of this appeal at page 8, it is quite clear that the petition which is dated 10/2/2000, did not show when the affidavit was filed. It also shows that the affidavit was deposed to and signed by the commissioner -for oath on the .same day the petition was dated i.e. 10/2/2000. On the face of the affidavit, it is plain that having been sworn to on the same date the petition was dated but not the date of filing the petition, it can not be said to have satisfied the requirement of the rule with regard to the time of filing the petition.
The verifying affidavit accompanying petition will be grossly incompetent if sworn to on the same day the petition is filed. It clearly offends the provisions of Order V Rule 10 (1) and Order VII Rule 11 of the Matrimonial Causes Rules which said provisions had been held to be mandatory and cannot be derogated from. See Unegbu v Unegbu (supra) and Umeakuna v Umeakuna (supra). The net effect is that there is verifying affidavit before the Court and a petition cannot stand without a verifying affidavit sworn to at least a day before the petition is brought.
Effect of non-compliance with Order V rule 10 (1)

The Court of Appeal had interpreted the above provisions of the Matrimonial Causes Rules LFN 2004, in various cases and came out with one conclusion. To the Court, non-compliance with the above provisions renders the petition incompetent and liable to be struck out.

In Umeakuna v Umeakuna (2009) 3 NWLR (Part 1129) Page 598 Particular at 612, the Court of Appeal after reproducing Order V Rule 10 of the Matrimonial Causes Rules stated:
In this case, it appears to me that the word “shall” as used in the rule imposes obligation on the petitioner to do or to comply with what is imposed in the rule. The word therefore as held in Unegbu v Unegbu (supra), had been used in the mandatory sense requiring strict obedience and fulfillment. Meaning, failure to do exactly what is required by the rule could be fatal to the divorce petition.

The Court at page 614 continued:

I have pointed out earlier in this judgment that compliance with the provisions of rule 10 (1) of Order V of the Matrimonial Causes Rules (supra) is mandatory, failure by the respondent to verify facts stated in his petition of which he has personal knowledge as required by the said rules is fatal and fundamental to his petition.

The Court had this to say.

In the circumstances and in view of the provisions of Order V Rule 10 which require the affidavit to be on the petition and to be filed before the petition is filed, I, again, have no choice, but to strike out the petition.

In Madukolu V Nkemdilim (1962) 2 SCNLR; Hamzat v Sanni (2015) 5 NWLR (Part 1453) 486 SC. For avoidance of doubt, for a court of law to assume jurisdiction over a matter before it, the following conditions must co-exist:
The court is properly constituted as regards the number and qualification of the members of the bench and no member is disqualified for one reason or the other;
the -subject matter -the case is within its jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction; and;

The case comes before the court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction.

See the cases of Bankole V Dada (2003) 11 NWLR (Pt. 830) 199-200, paras. G-b; International Nigerbuild Construction Co. Ltd V Giwa (2003) 13 NWLR (Pt.836) 69: Okwonkwo V Okwonkwo (2010) 14 NWLR (Pt.1213) P.228 @ 250-251 and Akpamkpo-Okadigbo V Chidi (No. 1) (2015) 10 NWLR (Pt.1466) 124.
4.13.

In conclusion, It is a settled principle of law that where the law prescribes the method of doing a thing, that method and no other method must be followed. See Yaki Vs. Bagudu (2015) 18 NWLR (PT. 1491) 288 AT 348 Paragraphs E – F; Saude Vs. Abdullahi (1989) 4 NWLR (PT. 116) 387 AT 422; Adhekegba Vs. Minister Of Defence (2013) 17 NWLR (PT. 1382) 126 AT 147,Paragraphs D -F.” –PER F.A.OJO, J.C.A.

O. G. Ogbom, Esq. is a Legal Practitioner based Port Harcourt.
ogbomgoodluck@gmail.com

 

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