Just as the Global Positioning System (GPS) gives navigation & directions to the route & location so as the Rules are made to provide support in the administration of justice and to aid the course of justice in determination of cases in Nigerian Courts.

It therefore behooves the litigants and their Lawyers to follow the Rules made to assist the court in its effort to determine issues or controversies before the court.

Over the years, it is observed that in commencing divorce proceedings in Nigerian Courts by many litigants, lawyers file the petition with the verifying affidavit on the same day.

It is this observation that calls for a beaming search light on the Order V rule 10 of the Matrimonial Causes Rules to find out the propriety or otherwise of such ubiquitous practice by many lawyers in Nigeria.

Before scrutinizing the provision of Order V rule 10 of the Matrimonial Causes Rules, it is pertinently important to say here that Order V rule 10 of Matrimonial Causes Rules, 1983 in force provides conditions precedent which the litigant who is desirous of commencing divorce proceedings in Court must fulfill for him/her to be legally empowered to commence the said divorce proceedings and compliance with the provision of Order V rule 10 of Matrimonial Causes Rules is mandatory. What then is the provision of Order V rule 10 of the Matrimonial Causes Rules?

It is the provision of Order V rule 10 of Matrimonial Causes Rules that:

(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.
(2) Where, for the purpose of complying with sub-rule (1) of this rule it is necessary for a petitioner to verify the doing of, or the failure to do, an act within, throughout or for a period ending on the day immediately preceding the date of his petition, it is sufficient compliance with that sub-rule if the petitioner verifies the doing of, or the failure to do, the act within, throughout or for, as the case may be, a period ending on the day immediately before the swearing of his affidavit.

(3) Where, for the purpose of complying with sub-rule (1) of this rule, it is necessary for a petitioner to verify that a certain circumstance existed at the date of his petition, it is sufficient compliance with that sub-rule if the petitioner verifies the existence of the circumstance at the date of swearing his affidavit.

Considering the provision of Order V rule 10 (1) of the Matrimonial Causes Rules, 1983 in the case of Unegbu v. Unegbu (2004) 11 NWLR (Part 884)332 @ 357 paragraphs A-C, Justice Mahmud Mohammed J.C.A in his lead judgment sieved out duties of a petitioner from provision of Order V rule 10 (1) of the Matrimonial Causes Rules, 1983 and held thus:

‘Now it is quite clear from the rule that the duties it imposes on a petitioner are as follows:

a petitioner shall write an affidavit on his petition;
the affidavit shall be sworn to before his petition is filed;
in the affidavit, the petitioner shall verify the facts stated in his affidavit of which he has personal knowledge; and
in that affidavit the petitioner shall depose as to his belief in the truth of every other fact stated in the petition.
All those duties imposed on a petitioner by rule 10 (1)of Order V of the Matrimonial Causes Rules 1983 to my mind are mandatory.’ The underline is the writer’s for emphasis.

Also, Justice Mohammed Ladan Tsamiya J.C.A in his lead judgment in the case of Umeakuana v. Umeakuana (2009) 3 NWLR (Part 1129) 598@612 paragraphs B-E while considering the provision of Order V rule 10 (1) of the Matrimonial Causes Rules, 1983 laid credence to the reasoning of Justice Mahmud Mohammed in Unegbu v. Unegbu (supra) and held thus:

‘In this case, it appears to me that the word ‘‘shall’’ as used in the rule imposes obligation on petitioner to do or to comply with what is imposed in the rule. The word therefore, as held in Unegbu v. Unegbu (supra) had been used in mandatory sense requiring strict obedience and fulfillment. Meaning, failure to do exactly what is required by the rule could be fatal to the divorce petition. A careful perusal of the said rule will reveal that the duties imposed on a petition are as follows:

(1) A petitioner shall write an affidavit on his petition for divorce;

(2) The affidavit shall be sworn to before his petition is filed;

(3) In the affidavit, the petitioner shall verify the facts stated in his affidavit of which he has personal knowledge; and

(4) In that affidavit, the petitioner shall depose as to his belief in the truth of every other fact stated in the petition.

The above duties imposed on a petitioner to my understanding are mandatory.’ The underline is the writer’s for emphasis.

It is crystal clear from the underlined duty in the above cited cases that a petitioner is duty bound to swear to an affidavit to verify the facts stated in the petition of which the petitioner has personal knowledge as required by the said rule and failure of a petitioner to swear to such affidavit before filing his petition is fundamentally fatal to his petition.

It might seem absurd or irrational to some readers that a petitioner who has not filed his petition must swear to affidavit verifying facts in the petition before filing his petition.

Clearing the air on such conception and thought, it is important to give the judicial definition of the word ‘verify’ used in Order V rule 10(1) of the Matrimonial Causes Rules, 1983.

In the case of Unegbu v. Unegbu(supra)@356 paragraphs D-E, Justice Mahmud Mohammed J.C.A while considering the provision of Order V rule 10(1) of the Matrimonial Causes Rules, 1983 in force held thus:

‘‘The word ‘verify’ as used in the rule is defined in Black’s Law Dictionary Fifth Edition at page 1400 as meaning-‘To confirm or substantiate by oath or affidavit. The rule is definitely imposing a duty on a petition filing a petition on what he should do to the petition before filing the same.’’

Flowing from the above quoted holding of the court vis-à-vis definition of the word ‘verify’ is the deductible fact that a petitioner must have first written his petition and discharged his duty of swearing to an affidavit verifying the facts in the petition on him before presenting same for filing.

It is fundamentally necessary to submit that a petitioner has no right of choosing which of the duties imposed on him by the provision of Order V rule 10(1) of the Matrimonial Causes Rules to be performed and which one he/she is to neglect or refuse to perform. Fortifying this submission is the holding of Justice Mohammed Ladan Tsamiya J.C.A in Umeakuana v. Umeakuana (supra) at page 613 paragraph A-C wherein the Lordship held thus:

‘The second requirement the affidavit of a petitioner must satisfy is that, it shall be sworn to by the petitioner before filing his petition. Looking at the record (exh.‘‘A’’) of this appeal at page 8 it is quite clear that the petition which was dated 10/2/2000 did not show when the said affidavit was filed. It also shows that the affidavit was deposed to and signed by the Commissioner for Oaths on the same date the petition was dated i.e. 10/2/2000. On the face of the affidavit, it is plain that having been sworn to on the same date the petition was dated but not the date of filing the petition, can it be said to have satisfied the requirement of the rule with regard to the time of filing the petition? My answer is no. This is because Order V rule 9 (1) provides that a petition shall bear date of the day on which it is filed.’ The underlines are the writer’s for emphasis.

From the foregoing, it is the writer’s stand that swearing to verifying affidavit as required by the Matrimonial Causes Rules on the day the petition is filed is a gross non-compliance with the provision of Order V rule 10(1) of the Rules and failure to have the verifying affidavit sworn to before filing the petition renders the said petition incompetent and oust the court of its jurisdiction to determine such petition.

It must be said that the petitioner’s duty to have verifying affidavit on his/her petition for divorce proceedings does not take away the petitioner’s duty of having verifying affidavit sworn to before his/her petition is filed. The language of the rule is imperative, quite clear and plain, and therefore must be given its ordinary meaning.

It must be further noted that having the verifying affidavit sworn to on the date the petition is filed depicts that the verifying affidavit supports the petition in the same way as an affidavit in support of a motion. Hence, the emphasis in the rule 10(1) of Order V of the Matrimonial Causes Rules is meant to stress the role of the affidavit required under the rule as a verifying affidavit to the petition rather than an affidavit in support of the petition. This submission is fortified by the decision of the court in Unegbu v. Unegbu (supra) @ 356 paragraphs A-D

It must be further noted that prior to the decision of the court in Unegbu v. Unegbu (supra), there was no decision of the Supreme Court or Court of Appeal on the interpretation and application of Order V rule 10(1) of the Matrimonial Causes Rules, 1983 in force and all the pre-decided cases before the enactment of the Matrimonial Causes Rules, 1983 were decided under the English Matrimonial Causes Rules 1957 by virtue of the provisions of the various High Court Laws. For instance, the provision of the High Court Law that was applicable then in the Eastern States which the writer laid his hand on had a provision in section 16 that vested jurisdiction in the High Court as regards practice and procedure to be exercised in the manner provided by the High Court Law and any other written law and in default thereof, in substantial conformity with the law and practice obtaining in England then for the High Court of Justice.

Beaming further search light on the relevant rule in England which Nigerian Courts had resorted to in deciding divorce cases before the enactment of the Matrimonial Causes Rules, 1983 reveals the rule 6(1) and (3) which 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 as to his belief in the truth of the other facts.

(3) The affidavit in support of the petition shall be contained in the same document as the petition and shall follow at the foot or end thereof’

It is safe to conclude that it is the above quoted provisions that form springboard for having verifying affidavit sworn to on the date the petition is filed and also having the provision of the phrase ‘A petitioner shall, by an affidavit written on his petition’ in Order V rule 10(1) of Matrimonial Causes Rules, 1983 interpreted to mean that the verifying affidavit must be written on the same page with the petition which many lawyers often explore to raise objection against any petition which has its verifying affidavit on the different page of the petition.

It is hereby recommended that since the Matrimonial Causes Rules 1983 is the extant rules regulating the practice and procedure applicable in Nigerian Courts for divorce proceedings and other matrimonial disputes, strict compliance with the provisions therein must be accorded to the Rules. Thus, the Matrimonial Causes Rules are not made for fun but to be obeyed and it must be obeyed.