Can A Petitioner Validly Commence A Petition For Dissolution Of Marriage By Proxy, For Example, By An Attorney?

By James Nwanyanwu Esq

The simple principle of the law of contract is so Elementary to be glaring even to a lay man that no person who is not a privy to a contract can either enforce, terminate or benefit from such a contract even when the contract was made for his benefit or when the contract purports to so empower him. see Dunlop Pneumatic tires Company Limited V. Selfridge and Co Ltd (1915) AC 847 at 853 Lord Haldens held as follows “…only a person who is a party to a contract can Sue on it. our law Knows nothing of a jus quaesitum tertio  arising by way of contract. such a right may be conferred by way of property, as for example, under a trust but it cannot be conferred on a stranger to a contract as a right-in person to enforce the contract.”.

See also Chuba Ikpeazu V. African Continental Bank (1965) NMLR page 347 where the court of appeal held that ” generally a contract cannot be enforced by a person who is not a party even if the contract was made for his benefit and proposed to give him right to sue upon on it”

Marriage is a contract between two people and this principle of general contract applies.

In this article the main question to be answered in this article is, can  a petitioner validly commence a petition for dissolution of marriage by proxy, for example, by an attorney?

Just as the Marriage Act does not recognise marriage by proxy, the only person that can commence, institute, and prosecute a petition for dissolution of marriage shall be the petitioner who must be a party to the marriage either as husband or as the wife of the marriage, not by proxy, with or without a power of attorney. See section 15 (1) of the Matrimonial Causes Act which provides-

“A Petition under this act  by a party to a marriage for decree of dissolution of marriage may be presented to the court by either party to the marriage upon the ground that the marriage has broken down irretrievably”. (underlining mine)

Verification:

There is a requirement for a valid affidavit verifying the facts of the petition under Order V Rules 10 (1) (a) and (b) of Matrimonial Causes Rules. It provides-  a petitioner shall by an affidavit written on his petition and sworn to before his petition is filed

(A) verify the facts stated in his  petition which he has personal knowledge of,and (b) depose as to his belief in the truth of every other fact stated in his petition

By Rules 10 (1)(a) the petitioner is to verify facts within his or her personal knowledge of facts leading to the petition.

The petitioner is also to state the extent of the fact to which although he has no personal knowledge of them but  he has believed them to be true – Umeakunana v Umeakunana(2009)3NWLR (pt1129)598@611-612 para G-B, the court of appeal held: “the word shall as used in order V Rule 10(1) of the Matrimonial Causes Rules imposes obligation on a petitioner  to do or to comply with what is imposed by the rule. The word is used in a mandatory sense requiring strict obedience and fulfillment. Failure to do exactly what is required by the rules could be fatal  to the divorce petition”

Deposition of the verifying affidavit by the petitioner- Odusote v Odusote (2011)LPELR 9056; (2013) 3NWLR (pt1288)p.478 the court of appeal was explicit as it was elucidatory when it insisted that the verifying affidavit shall be deposed to by the petitioner himself not a proxy or Attorney or whatsoever name called. The court held as follows “the petition must as a requirement of the provisions, contain the affidavits sworn to by the petitioner before it is or can be properly filed..” (Underlining mine)

Umeakunana v Umeakunana the court held that to “verify” means to prove to be true, to confirm, or establish truthfulness of, to authenticate, to confirm and substantiate on oath or affidavit, to swear to the truth of the case. The court also held that the verifying affidavit shall be deposed to by the petitioner and no other.

In Unegbu v Unegbu (2004) 11 NWLR (pt 884) 332 at p. 358-359 Per Mohammed JCA as he then was , the court citing Oyedu v Oyedu(1972)2ESCLR 730 per Aniagolu J and Omodan v Omodan (1966) 1NMLR 238 per Idigbe CJ high court of western Nigeria stated as follows:

“as I have already concluded earlier in this judgement that compliance with order V Rule10(1) of the Matrimonial Causes Act 1983 is mandatory. The failure of the respondent to write his affidavit on the petition and to verify the facts stated in the petition of which he has personal knowledge as required by the rules is fatal to his petition. The language of the new Rule being imperative and the plain words of the statute must be given their ordinary meaning. It is indeed trite that where the provisions of statute are plain, clear and unambiguous, they should be given their plain, ordinary meaning without any qualification. See Owena bank Nigeria  PLC V. NSE Ltd (1997) 8 NWLR (part 515) page 1 and Amadi V. NNPC (2000) 10 NWLR (part 574)76 at 109. The words “an affidavit written on his petition” are quite clear in my view; taking into consideration that the affidavit is to verify the facts in the petitioner’s petition. It is obvious that to perform that function of verification, the affidavit must be written on the petition itself, the content of which are being verified by the affidavit”.

In Umeakunana v Umeakunana the court held-” compliance with the provisions of Order V rule 10(1) of the Matrimonial Causes Act is mandatory. Thus the failure of a petitioner to verify the facts stated in his petition of which he has personal knowledge as required by the said Rule, is fundamentally fatal  to his petition. The language of the rule is imperative, quite clear and plane and therefore must be given their ordinary meaning.

In Unegbu v Unegbu the court held-

Where a petitioner in a matrimonial causes matter has not disclosed in his affidavit which of the facts stated in his petition were derived from his personal knowledge, which is distinct requirement, the petitioner’s affidavit has not met with a requirement plainly specified by paragraph (a) of Rule 10(1)  of Order V of the Matrimonial Causes Act 1983.”

The essence of the foregoing therefore is to prove that, in a petition for dissolution of marriage, the certificate relating to reconciliation and affidavit verifying the facts of the petition should be executed and endorsed by the petitioner and not a non-party to the marriage.

So where a petition for dissolution of marriage is commenced by a non-party to the marriage, or where a non-party to the marriage executed or endorsed the certificate relating to reconciliation and affidavit verifying the facts of the petition, such a petition is invalid and accordingly robs the court of the jurisdiction to entertain the petition, notwithstanding how powerful the power of attorney granted a third party is.

It is natural to expect that a person who can validly complain about the breakdown of a marriage is a party to it and no other. This is the simple intention of section 15 (1) of the Matrimonial Causes Act when it said “A Petition under this act  by a party to a marriage for a decree of dissolution of marriage may be presented to the court by either party to the marriage….”

A power of attorney granted to anyone to give evidence or conduct the suit would be in contravention of the Matrimonial Causes Act as the person would be giving hearsay evidence and not facts “which he has personal knowledge of”.

In section 4 of the Matrimonial Causes Act,  interpretation to the term “Respondent” in a matrimonial causes action relates to the spouse of the “petitioner”; this is without prejudices to a “co-respondent” or “party cited” – a person with whom the respondent or petitioner respectively is alleged to have committed adultery.

I must not end this article without pointing out that whereas a third party cannot file a petition for dissolution of marriage, an attorney or third party can file a suit in respect of a void or voidable marriage. For instance, if a married person marries another person without first dissolving the previous marriage, a partner to the first marriage can file an action for the annulment of the later marriage. Other matters such as child custody, maintenance can however be maintained through an attorney.

With the various Rules of courts adopting virtual procedures and trials, E- filing and signing, distance can not operate as a barrier to personal evidence in a Matrimonial Causes action for dissolution of marriage.

James Nwanyanwu Esq. Enugu, Nigeria., Jamesnwanyanwu@gmail.com