A Shield Rule From Consequences Of Non-Compliance With The Matrimonial Causes Rules By S.O. Giwa Esq

It is no longer a novel practice of some lawyers raising an objection against a divorce petition for failure of the Petitioner to comply with any provision of Matrimonial Causes Rules particularly provision of Order V rule 10 (1) which imposes duty on the Petitioner to write an affidavit verifying facts stated in the petition on his/her petition  and the Judges are not left out from this as many Judges do make order striking out petitions upon findings that the Petitioner has failed to comply with the provision of the said Rules as alleged by the Respondent.

It is no gainsaying that this practice has become ubiquity in the practice of law and thereby makes many young lawyers to follow same hook, line, and sinker without any effort of finding out the proprietary or otherwise of such ubiquitous practice.

It is pertinently important to submit that the provisions of the Matrimonial Causes Rules are made to ensure that substantial and practical justice is done in the cases presented by the parties devoid of technicalities that only relate to the form but not the substance of the case.

It is also important to unequivocally say that the writer is not oblivious of the holding of the Court of Appeal in Umeakuana v. Umeakuana (2009) 3 NWLR (Part 1129) 598 @614 paragraphs C-D that Rules of Court, particularly Matrimonial Causes Rules, are highly technical in nature and are meant to be and must be obeyed.

It is however fundamentally important to beam a search light on the entire provisions of the Matrimonial Causes Rules with a view to finding out if there is a mitigating rule in the provisions of the Matrimonial Causes Rules and which the Apex Courts have considered and pronounced thereon for same to be termed or christened ‘A SHIELD RULE’.

Reading through the Matrimonial Causes Rules meticulously with a view to finding out if the then Chief Justice of Nigeria, Justice Atanda Fatayi-Williams, in exercising the powers that were conferred on him as the then Chief Justice of Nigeria by sections 93 and 112 of the Matrimonial Causes Act 1970, to make rules to aid administration of justice as he thinks appropriate, makes any provision on the effect of Non-compliance with any of the rules for discussion reveals provision of Order XX1 rules 2 and 3 of the Matrimonial Causes Rules under the heading ‘Effects of Non-compliance with these Rules or with an order’. What then is the provision of Order XX1 Rules 2 & 3 of the Matrimonial Causes Rules?

Order XX1 Rules 2 & 3 provides thus:

‘‘Rule 2. Non-compliance with Rules not to render proceedings void

Subject to these Rule, 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 thinks fit.

Rule 3.Court may relieve party from consequences of non-compliance’

             Subject to the Act and to these Rules:-

             (a) A Court may at any time, upon such terms as    the Court deems fit, relieve a party from the consequences of non-compliance with these 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 by a party with any provision of these Rules.’’

Flowing from the above quoted provision of Order XX1 of the Matrimonial Causes Rules is the deductible salient points hereunder highlighted. The said salient points are that:

1. Non-compliance with the Matrimonial Causes Rules shall not render proceedings void unless the court so directs
2. Non-compliance with a rule of practice and procedure of the trial court applicable under the Matrimonial Causes Act to divorce proceedings shall not render proceedings void unless so directs, i.e. rule relating to costs of proceedings and the assessment or taxation of those costs; rule prescribing the court fees to be charged in respect of proceedings or in relation to declarations, affidavits etc. See section 112 of the Matrimonial Causes Act

• Such proceedings may be set aside either wholly or in part as irregular

1. Such proceedings may be amended
2. Such proceedings may be dealt with in such manner and upon such terms as the court thinks fit
3. A court may at any time relieve a party from the consequences of non-compliance with the Matrimonial Causes Rules upon such terms as the court thinks fit

• A court may at any time relieve a party from the consequences of non-compliance with a rule of practice and procedure of the trial court applicable under the Matrimonial Causes Act to divorce proceedings upon such terms as the court thinks fit
• A court may dispense with the need for compliance by a party with any provision of Matrimonial Causes Rules upon such   terms as the court thinks fit.

The essence of the above provisions is that non-compliance with any of the provisions of the Rules be it Matrimonial Causes Rules or a rule of practice and procedure of the trial court applicable under the Matrimonial Causes Act to divorce proceedings would not render the proceedings void which some lawyers used to urge the court to so declare, 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. This is so to ensure that substantial justice is done without deciding the parties’ case on technicalities as to form and not the substance of the case.

It is therefore safe to conclude that any non-compliance if at all is an irregularity which should not be allowed to defeat the cause of Justice. This conclusion of the writer takes credence from the decision of the court in Odusote v. Odusote (2012) 3 NWLR (Part 1288)478@498-499 wherein Justice Mohammed Lawal Garba J.C.A. in determining the Appellant’s issue of whether or not the petitions upon which the court delivered its judgment is competent in the face of Order V rule 10(1) of the Matrimonial Causes Rules, Cap. 220, Laws of the Federation, 1990 reproduced at page 494 of the law report held thus:

‘The affidavit is on the petition which precedes it on pages 1-6 thereof and so manifestly satisfies the requirements of Order V rule 10(1) above. The affidavit is not in a separate document or outside the petition itself, but forms part of it. For that reason the submission by learned counsel for the appellant are misconceived and I have no difficulty in finding that the respondent’s further amended petition has complied with the provisions of Order V rule 10(1). In any case, Order XXI of the rules has made provisions on the effect of non-compliance therewith.’

It is the further holding of the court in Odusote v. Odusote (supra) at page 499 paragraphs F-H that:

‘The objects of these provisions of Order XXI are that a non-compliance with any provision of the rules shall not on its own render proceedings void and that a court had the discretion to relieve a party from the consequences of any non-compliance or dispense with the need for compliance by a party with any provision of the rules. Their overall aim is to ensure that substantial and practical justice is done in the cases presented by the parties devoid of technicalities that only relate to the form but not the substance of the case.’  

It is equally noteworthy that the court in the case of Ojeniran v. Ojeniran (2018) LPELR -45697(CA) when faced with the similar issue applied Order XXI Rules 2 and 3 and relieved a party from consequences of non-compliance wherein the court held thus:

‘Any non-compliance if at all, is an irregularity which should not be allowed to defeat the cause of justice.’ See also MGBEAHURUIKE VS. MGBEAHURUIKE (2017) LPELR-42434 (CA) 

It is however important to have recourse to the decision of Supreme Court on the application of Order XXI as the most current position of the Apex Court vis-à-vis non-compliance with the provision of Matrimonial Causes Rules made on Friday 16^th, December, 2016 in Tabansi v. Tabansi (2018)18 NWLR (Part 1651)279

Sequel to the dissatisfaction of the Petitioner with the judgment of the Court of Appeal dismissing his appeal, he further appealed to the Supreme Court on four grounds and distilled six issues therefrom. The relevant issue for discussion in this piece is the issue two submitted for the determination by the Court which reads:

‘Whether Order XXI rules 2, 3 and 4 of the Matrimonial Causes Rules waived the need for the respondent to plead and lead evidence as required by Order XIV rule 4(1), (2), (4), (6), (7) and (8) of the Matrimonial Causes Rules and what is the effect of non-compliance in this case?’ 

Resolving the above quoted issue, Justice Kumai Bayang Aka’ahs, J.S.C in Tabansi v. Tabansi (supra) @298-299 paragraphs A-B held thus:

The lower court took the view that Order XXI rules 2 and 3 of the Matrimonial Causes Rules allows a Judge to adopt a liberal attitude to non-compliance with the Rules which non-compliance does not vitiate the proceedings to the extent that such proceedings would be rendered void. I agree with this view Order XIV rule 4 is to guide the court in ensuring that in granting a prayer for maintenance, the party who is adversely affected by the order will have something left over to sustain himself after settling the award.’ The underline is the writer’s for emphasis.

Flowing from the above quoted holding of the Apex Court is the reference to the view of the Court of Appeal by Justice Kumai Bayang Aka’ahs, J.S.C in Tabansi v. Tabansi (supra). It is however important to quote out the said view of the Court of Appeal as it was said as well as giving the full citation of the said case for easy reference.

Justice Stanley Shenko Alagoa J.C.A. in the judgment delivered on Tuesday, 8^th July, 2008 in Tabansi v. Tabansi reported in (2009) 12 NWLR (1155)415 @430 held thus:

‘Perhaps the salient aspect to be noticed under order XXI rule 2 of the Matrimonial Causes Rules, Laws of the Federation of Nigeria 2004 is its liberal attitude to non-compliance with the rules which non-compliance is not to render the proceedings void.’

It is however submitted that from the foregoing it is crystal clear that non-compliance with the Matrimonial Causes Rules does not call for raising objection against the entire petition and praying court for order striking out the said petition. This to my mind is nothing but a technical justice as opposed substantial and practical justice which the said Rules were made to achieve.

It is hereby advised that as legal minded person efforts should be intensified in going through the Laws and Rules as may be relevant to any issue being handled for clients as doing this would promote proper application of the Law and Rules and will thereby reduce backlog of appeals hanging at the Appellate Courts.

It is thus recommended at this juncture that lawyers who are ministers in the temple of justice should keep striving in assisting the court towards achieving justice and every lawyer should always bear it in mind that sacrificing substantial justice for technical  justice especially in Matrimonial cases is inimical to the growth of our dear Country.