Rejoinder: Verifying Affidavit Must Be Endorsed On Petition To Activate The Jurisdiction Of Court In Divorce Proceedings By Ebelechukwu Enedah, Esq

O.G Ogbom, Esq., a Porthacourt based lawyer wrote on the above subject matter.

He argued that The Court of Appeal had interpreted the provisions of Order V Rule 10 (1) of the Matrimonial Causes Rules CAP M7 Laws of the Federation of Nigeria 2004, in various cases and came out with one conclusion. To the Court, non-compliance with the provisions renders the petition incompetent and liable to be struck out.

However, Ebelechukwu Enedah, Esq. has voiced a contrary opinion. He said:

“Recent authorities are in favour of the fact that as long as there is an affidavit annexed to the Petition sworn to by the Petitioner before it is filed it suffices. Please see the case of OJENIRAN v. OJENIRAN (2018) LPELR-45697(CA) where the court held that;

While Order V Rule 10 (1) provides as follows: (1) “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 of which he has personal knowledge; and (b) depose as to his belief in the truth of every other fact stated in his petition.” ?All that these provisions require is that an affidavit be sworn to by the petitioner before the petition is filed to verify that all the facts in his petition are true, in his personal knowledge and as to his belief in the truth of every fact in the petition.

As rightly argued by the learned counsel to the appellant, by the use of the word “shall” in the provisions ordinarily means that the provisions are mandatory and are to be complied with as a condition precedent to the filing of the petition, which implies that the affidavit must be sworn to by the petitioner before the petition is filed, to verify the facts in the petition. Therefore, the provision contemplates that the affidavit would accompany the petition by being annexed to and forming part of the petition to be filed.

Therefore, the important thing is that the petitioner swears to the truth of the facts set out in the petition, to his knowledge and belief. As long as the affidavit is sworn to before the petition was filed and it accompanied the petition, the requirement under Order V, Rule 10 (1) would have been met. ‘

“The court went further to state that on the other side of the coin, the Matrimonial Causes Rules also made provision for the Court to dispense with the need for compliance with the Matrimonial Causes Rules under Order XXI Rules 2 and 3 which provide as follows: (2) “Non-compliance with Rules not to render proceedings void.

Subject to these Rules, non-compliance with these Rules, or with a rule of practice and 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) 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 thinks 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.”

The essence of the above provisions is that non-compliance with any of the provisions of the Rules would not render the proceedings void as urged by the learned counsel to the appellant 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. Therefore, any non-compliance if at all, is an irregularity which should not be allowed to defeat the cause of justice.”

– A Rejoinder by Ebelechukwu Enedah, Esq