3PLR – JULIANA OMONIYIPE ADEPOJU V. CORNELIUS ADETUNJI ADEPOJU AND 3 OTHERS
POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR
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JULIANA OMONIYIPE ADEPOJU
V.
CORNELIUS ADETUNJI ADEPOJU AND 3 OTHERS
[HIGH COURT (WEST)
5TH JUNE, 1968
SUIT NO. 1/235/67
3PLR/1968/5 (HC-4)
OTHER CITATIONS
BETWEEN
JULIANA OMONIYIPE ADEPOJU
AND
CONNECTED AREA OF PRACTICE
FAMILY LAW, WOMEN AND CHILDREN
REPRESENTATION
SHOKAN – for the Petitioner
SARUMI – for the first party cited
LATINWO – for the second party cited
MAIN ISSUES
FAMILY LAW – MATRIMONIAL PROCEEDINGS: – Parties to a Petition for divorce on ground of adultery – Cross-respondents accused of adultery with one of the parties to the marriage – Designations: “Persons Cited” and “Person Named” – Rules for naming, joining or claiming cost or damages against cross-respondents on ground of adultery – Relevant considerations
FAMILY LAW – MATRIMONIAL PROCEEDINGS: Divorce proceedings – Requirement to state the status of Wife before marriage – Rule 4(1) (a) of the Matrimonial Causes Rules, 1957 – Whether mandatory – Whether failure to do so is cured by the insertion of “nee (Wife’s pre-marriage surname)
FAMILY LAW – PROCEDURE:- Divorce proceedings – Whether every omission or mistake in practice or procedure should be rectified by the Court by granting amendment if this will not cause injustice to the other side – Order 2, Rule 1(1) of the Rules of the Supreme Court in England made applicable to divorce cases by virtue of Rule 82 of the matrimonial Causes Rules, 1957 – Distinction between nullities and irregularities – Whether every omission or mistake in practice or procedure should now be regarded as an irregularity which the Court can rectify
CHILDREN AND WOMEN LAW:- Women and Divorce proceedings – Petition on ground of divorce – Where wife alleges adultery between husband and another woman – Proper practice and procedure towards making same a cross-respondent, a named party or claiming costs or damages against same – Rights of a woman named as an adulterer in divorce proceedings to be joined as a cross respondent – How exercised
ETHICS – LEGAL PRACTITIONER: – Matrimonial proceedings – Divorce – Necessity that Counsel drawing up divorce petitions comply strictly with the Rules and follow as closely as possible the statutory forms laid down – Need for Counsel to ensure that the descriptions of the parties and the place where the marriage was celebrated and place of cohabitation agree with those given in the marriage certificate – Where there are discrepancies – Proper way to handle same
CASES REFERRED TO:-
Grace Omodon v. J. C. Omodon and Another (1966) M.N.L.R. 238
Harkness v. Nell’s Asbestors & Engineering Ltd. (1966) 3 All E.R. 843
Burford v. Burford (1953) 3 All E.R. 664, C.A.
(Oliver v. Oliver) 1918 35 T.L.R. 24
MAIN JUDGEMENT
AGUDA, J.:- [DELIVERING THE COURT JUDGMENT]
In this case Julianah Omoniyipe Adepoju brought a petition for divorce against her husband, Cornelius Adetunji Adepoju on grounds of adultery and cruelty. The heading to the petition contains the name Sabainah Oreitan Aremu, shown as “Person Named”. The body of the petition contains allegations of adultery between the respondent and the “Person Named” but no claim for damages or costs was made against her.
The respondent in his reply cross-petitioned for divorce against the petitioner on grounds of her adultery against two named men, who are now parties to this suit as “Persons Cited”. The Registrar’s Certificate was issues on 30th day of April, 1968. From that certificate it is clear that the “Person Named” has been served but has neither entered an Appearance nor filed an Answer. When the case was called on 20th May, 1968, Mr. Agboluaje, for the respondent submitted that the petition was not properly before the Court and should therefore be struck out. In his submission the petition does not comply with Rule 4(1) (a) of the Matrimonial Causes Rules, 1957, as it does not state the status of the petitioner at the time of the marriage. According to him the provisions of Rule 4 are mandatory and as the petition failed to comply with paragraph (1) (a) of the Rule the petition should be struck out. In his reply on this score Mr. Sokan for the petitioner submitted that the failure to state the status of the petitioner before marriage in the petition should not affect the petition. In any event, the insertion of the words “nee Omotosho”, showed, in Mr. Sokan’s submission, the status of the petitioner-which was spinster. Furthermore, he submitted that counsel for the respondent ought to have raised this point before the Registrar’s Certificate was issued. I must say at one that I do not share Counsel’s views that the mere insertion of “nee Omotosho” after the name of the petitioner in the petition is sufficient compliance with Rule 4 (1) (a) of the Rules which require that a divorce petition shall state “the name and status of the wife before the marriage.” It is essential that the petition should state clearly if the woman was a spinster, a widow, or a divorcee. It is not sufficient compliance with the Rule to state merely the previous name which is all that “nee” encompasses. In my view, therefore, the objection is well taken, and I hold that the petition is in this respect defective. It is of vital importance that Counsel drawing up divorce petitions should take utmost care that they comply strictly with the Rules and follow as closely as possible the statutory forms laid down. Counsel should take care that the descriptions of the parties and the place where the marriage was celebrated agree with those given in the marriage certificate. Where there are discrepancies these should be referred to in the petition and accounted for. See Rayden on Divorce (10th ed) para. 22, at p. 355. Whilst arguing this case on 20th May, 1968, Mr. Agboluaje for the respondent indicated that he knew of a judicial decision but upon which he could not lay his hand at that time which indicated that where the rules are mandatory, failure to observe them should lead to the case being struck out. He had since, in a note sent to me in chambers apparently copied to Mr. A. T. Sokan for the petitioner, directed my attention to that case. It is the case of Grace Omodon v. J. C. Omodon and Another (1966) M.N.L.R. 238, decided by Idigbe, C.J. (Mid-West). In that case it would appear that the affidavit verifying the facts contained in a divorce petition was contained in a separate document. The petition was dated the 20th February, 1965, and was filed on 6th March, 1965, whereas the affidavit verifying the facts contained in the petition was dated 27th February, 1965. The Learned Chief Justice held that as this procedure offended against the provisions of Rule 6 (1) and (2) of the Matrimonial Cause Rules, 1957, a petition “such as is envisaged by the provisions of the Divorce Rules 1957 has not been placed” before him and accordingly struck out the petition. The relevant Rule reads:-
“6(1) Every petition shall be supported by an affidavit by the petitioner verifying the facts of which he has personal knowledge and deposing of his belief in the truth of the other facts”
“The affidavit in support of the petition shall be contained in the same document as the petition and shall follow at the same foot or end thereof.”
In replying on this authority for support of his contention that the present petition should be struck out, counsel depended on the use of the word “shall”. However, although the learned Chief Justice felt that the provisions of the Rule were mandatory, he did not in the long run base his judgment on the fact that the Rule used the “shall”, but upon the fact that an amendment could not properly cure the error especially as in his opinion, the objection strikes at the root of the petition itself (see page 240 of the report). Although I have no desire to express any opinion upon the decision in that case, I am bound to point out that the error in procedure in the case, before me is not of the same type as that in the Omodon case (supra), and if the error in that case was so fundamental and important, it is surprising that the whole of the rule was revoked with effect from June 1, 1966. However, be that as it may, it is my view that every omission or mistake in practice or procedure should be rectified by the Court by granting amendment if this will not cause injustice to the other side. This is the main purpose of Order 2, Rule 1(1) of the Rules of the Supreme Court in England which is made applicable to divorce cases by virtue of Rule 82 of the matrimonial Causes Rules, 1957. As was pointed out in Harkness v. Nell’s Asbestors & Engineering Ltd. (1966) 3 All E.R. 843, Order 2, Rule 1 (1) has done away with the old distinction between nullities and irregularities and every omission or mistake in practice or procedure should now be regarded as an irregularity which the Court can rectify.
In the present case although the petition is defective in that it fails to state the status of the petitioner, it is my view that such a failure is not fatal to the petition and I shall not strike it out on that ground. It is an omission in procedure which can be cured by an amendment, and where this can be done, the Court should grant such an amendment, so as to decide on the merits of the case: See Burford v. Burford (1953) 3 All E.R. 664, C.A. In this case Counsel for the petitioner has informed the Court that the petitioner was a spinster at the time of her marriage to the respondent, and counsel for the respondent has not denied this nor indicated that the petitioner had a different status at material time. In consequence, I hereby order that paragraph 1 of the petition be amended by adding the word “spinster” after the word “Adepoju” in the first line thereof.
The second point made by counsel for the respondent was that the petition indicated only one place of cohabitation whereas the parties cohabited in several places. In this regard all that the law required is that a petitioner should indicated in his or her petition the principle addresses of cohabitation within the jurisdiction, and particularly the final place of cohabitation. This is not a point of great importance particularly where there has been an indication of cohabitation at a particular address within the jurisdiction, and there has been no indication on the petition that the parties had cohabited at other addresses. If in fact that has been the case, it was left to the respondent if he thought that this was important for his case, to indicate other places of cohabitation in his reply, in any event, the necessity for indicating places of cohabitation, is for the information of the Proctor (See Re Lawton’s Petition for Dissolution of Marriages), (1912) W .N. 244 and I hold that the objection to the petition on this ground lacks substance and is over-ruled.
Lastly, Counsel for the respondent has made the point, rather very strongly, that the woman Sabainah Oreitan Aremu, should not have been made a party to this suit without the leave of Court, and that her name should be struck out of it. In his submission, counsel for the respondent argued that since the petitioner claimed no relief from the woman, either in the ways of claims for damages or for costs, she should never have been made a party to the suit. He referred me to rule 5 (1) of the Matrimonial Causes Rules, 1957, which prescribed that “where a wife’s petition alleges adultery with a woman named and contains a claim for costs against her, she shall be made a respondent in the case.” Counsel for the petitioner had no answer to this objection, except to say that the objection could not be taken by the respondent, but that it should be left to the woman to take. However, since the objection has been taken and it is of great importance to Counsel preparing divorce petitions, I think that it is one upon which I should give my considered views:
The first observation that has to be made with respect to the relevant part of rule 5 (1) quoted above is that it is silent as to what is to be done where no claim for costs is made against the woman alleged to have committed adultery with the respondent. Secondly whereas the first part of rule 5 (1) indicates that “unless otherwise directed, where a husband’s petition alleges adultery, the adulterer shall, if living at the date of the filing of the petition, be made a co-respondent in the cause”, the rules says that if a woman is the petitioner, and the respondent is alleged to have committed adultery with a named woman, then if costs are claimed against her, she should be made respondent. At this juncture, it should be pointed out that in cases where a male respondent is alleged to have committed adultery with a named woman it is not usual to claim damages against her although the petition may contain a prayer that she be condemned to pay the costs of the proceedings.
In my view, the following represent the procedure to be adopted under the Matrimonial Causes Act, and the rules made thereunder:
(a) In all cases where a husband’s petition alleges adultery the alleged adulterer must be made a party if he is living and shown as co-respondent on the divorce petition.
(b) For sufficient cause, and upon a motion by the petitioner, the Court may order that the petitioner in (a) above be at liberty to proceed in the cause without making the alleged adulterer a co-respondent. See form No. 67, at page 1813 of Rayden on Divorce (10th ed.).
(c) A wife in her petition for divorce on ground of adultery, must insert the name of the woman with whom her husband is alleged to have committed adultery in her petition if she knows it (Oliver v. Oliver) 1918 35 T.L.R. 24 and must serve her with all the papers.
(d) If in (c) above, the petitioner does not know the name of the woman, no leave of Court is required to dispense with naming the woman in the petition and the petitioner will then not be obliged to serve the woman with all papers of the proceedings.
(e) On a petition for divorce by a wife on the ground of adultery with a named woman, if costs are claimed against the woman, then the named woman must be made a respondent to the petition and no order of Court is required.
(Rule 5(1) of the Matrimonial Causes Rules, 1957).
(f) On a petition as in (e) above, the Court may on a motion by the petitioner direct that the woman against whom no claim for costs has been made a respondent (Section 4(2) of the Matrimonial Causes Act 1965).
(g) A woman who has been named in a divorce proceedings as having committed adultery with a male respondent and who has not been made a party to the proceeding is at liberty to move the Court to allow her to join in the suit and the Court may if he thinks fit and on such terms, if any, as it thinks just, allow her to be made a party. (Section 44 of the Matrimonial Causes Act 1965). Her name will then be inserted at the top of the suit, followed by word “Intervening”. (See Form No. 21 of Rayden on Divorce (10th Ed) page 1790).
(h) Similarly a man who has been charged with adultery in petition brought by a husband, and who has not been made a party, may also be allowed to intervene (Section 44, ibid).
In this case, this Court has not given leave to the petitioner to make the woman Sabinah Oreitan Aremu party to this suit, no claim for costs has been made against her, and she has not applied to this Court to be allowed to intervene. In these circumstances, I am of the view that she has not been properly made a party to this suit and I order that her name be struck out there from.
Paragraph 1 of Petition ordered to be amended by adding the word “Spinster” after the word “Adepoju” in the first line thereof Name of the woman named ordered to be struck out.
