Whether an Adulterer Must be Joined in an Action for Dissolution of Marriage on the Grounds of Adultery

CASE TITLE: UMAR v. UMAR (2022) LPELR-57114(CA)

JUDGMENT DATE: 22ND FEBRUARY, 2022

PRACTICE AREA: MATRIMONIAL CAUSES

LEAD JUDGMENT: YUSUF ALHAJI BASHIR, J.C.A.

SUMMARY OF JUDGMENT:

INTRODUCTION

This appeal borders on Dissolution of Marriage.

FACTS

This appeal is against the decision of the Osun State High Court, Ikirun delivered on the 28th day of February, 2020.

The Respondent instituted divorce proceedings against the Appellant in the trial Court. The proceedings at the trial Court went on ex-parte because attempt at personal service of the petition against the Appellant was unsuccessful. The Respondent then sought for an order for substituted service of the petition on the Appellant and same was granted.

When the Appellant did not enter appearance or file any process to defend the petition, the learned trial Judge proceeded to hear and determine the petition in her absence, after the Court had become satisfied that the substituted service on the Appellant was good and sufficient.

The learned trial Judge dissolved the marriage between the Appellant and the Respondent.

Being a default judgment, the Appellant brought an application to set aside the judgment, the trial Court dismissed the application.

Dissatisfied, the Appellant appealed.

ISSUES FOR DETERMINATION

The Appellant formulated three (3) issues for determination thus:

1. Whether the petition of the Respondent at the trial Court was competent.

2. Whether the trial Judge afforded fair hearing to the Appellant when he gave judgment in favour of the Respondent and granted his reliefs.

3. Whether the petition of the Respondent was proved before the trial Court to warrant judgment given in Respondent’s favour.

The Respondent formulated three (5) issues for determination thus:

1. Whether the appellant (in the face of Report of service of the Bailiff of the lower Court contained at page 29 of the record of appeal, an order for substituted service contained at page 30 of the record of appeal, affidavit of service contained at page 31 of the record of appeal, EMS postal dispatch receipt contained at page 32 of the record of appeal, and text message request contained at page 200 of the record of appeal can be said not to have been given fair hearing.

2. Whether a divorce proceeding commenced by petition as provided by the Matrimonial Act can be said to be incompetent, and if so, whether the appellant can raise the issue of competence of a Court processes (the petition) without obtaining leave of the Court.

3. Whether the respondent is not entitled at law to be granted the reliefs he sought before the trial Court: (dissolution of the marriage of the respondent, custody of his children and ownership of his personal property) and if so, whether the trial Court erred in law to have granted the respondent the reliefs sought upon the evidence(s) of the respondent.

4. Whether grounds of appeal and the issues thereto can be framed from obiter dictum contained in a judgment and if so whether a trial Court which conducted a trial proceeding was not at liberty under our jurisprudence to draw inferences and make conclusions from the evidence(s) and submission presented before it.

5. Whether a trial Court can set aside its own judgment when the Court has become functious offcio.

DECISION/HELD

In the final analysis, the appeal was allowed. The default judgment entered by the trial Court was thereby set aside along with all other orders therein.

RATIOS:

• JUDGMENT AND ORDER – SETTING ASIDE JUDGMENT/ORDER: Whether a Court has the power to set aside its own judgment given in default
• MATRIMONIAL CAUSES – ADULTERY: Whether joinder of adulterers is a must requirement for dissolution of marriage on the grounds of adultery; effect of failure
• MATRIMONIAL CAUSES – DIVORCE PROCEEDINGS: Effect of non-compliance with the Matrimonial Causes Act and the Matrimonial Causes Rules in instituting a divorce proceeding on the jurisdiction of the Court
• MATRIMONIAL CAUSES – DISSOLUTION OF MARRIAGE: Attitude of Court to dissolution of marriage