Emerienzen v. Emerienwen & Anr

IN THE HIGH COURT OF LA GOS STATE
IN THE IKORODU JUDICIAL DIVISION
IN THE HIGH COURT NO. 48 IKORODU
BEFORE HON. JUSTICE S. A. ONIGBANJO - JUDGE
THURSDAY THE 12TH DAY OF MAY. 2005.

Suit No. IKD/WD/8/2004

BETWEEN:

JACQUELINE EFETURI EMERIENWEN }PETITIONER

AND

1. CYPRIAN EFETURI EMERIENWEN }RESPONDENT
2. JOHN PALLANT }CO-RESPONDENT




RULING.

This application dated 10/1/05 is brought pursuant to Order 33 Rules 17 High Court Civil Procedure Rules 2004, S.32(l) & (3), and S.III(l) & (2) Matrimonial Causes Act Cap. 220, 0. VII R. 4 (3) of the Matrimonial Causes Rules and under the inherent jurisdiction of the court, praying the court for the following orders:

1. An order to dismiss the proceedings instituted by the answer to the petition by the Respondent against the Applicant as Co-respondent in this suit.
2. The name "John Pallant” as n party in this suit be struck for misjoinder.
3. And for such further order or other orders as the Honourable Court may deem fit to make in the circumstance.
The application is supported by an eight paragraph Affidavit deposed to by one Faye Harry.
In moving the application, N. Otaji of counsel for the applicant submitted that the issues are: a. whether the applicant is properly brought before the court in accordance with the Matrimonial Causes Rules. He cited O.1 R. 4 of the rules and submitted that the procedure adopted by the respondent in joining the applicant as a co-respondent is wrong in law.
b. whether or not sufficient particular;; of adultery have been given against the applicant in the answer/reply to the petition to warrant his joinder as a party
c. whether or not from the facts disclosed in the answer/reply to the petition the respondent is not guilty of Condonnation of acts of adultery stated therein and consequently precluded from instituting divorce proceedings by way of answer or cross petition, learned counsel relied on ratio. 5 in the case of Anagbado vs. Anagbado 1992 1NWLR pt. 216, pg. 207 at 211.
He further submitted that the respondent should have taken advantage of O.13 R. 13 of the High Court rules which provide for joinder of parties and that paragraph 5 & 6 of the respondents counter affidavit should be stuck out for offending the provisions of the Evidence Act. He finally submitted that it is trite law that uncontroverted averments in affidavits as deemed admitted.
In reply, Adesina Esq. of counsel to the respondent submitted that the main issue for determination in this application is the consideration of what the nature of a cross-petition is? In answer to this question learned counsel submitted that a cross-petition tike a counter-claim is an action on its own and as such there must lie a co-respondent and like a I counter-claim a defence is required and that it is in this defence that the applicant would state all averments now contained in this application.
Learned counsel referred to paragraph 3, d & 7 of the affidavit in support of the application and submitted that they confirm the need for the applicant to answer the cross-petition and specifically prove the acts contained in the said paragraphs 3, 6 & 7
In answer to the questions raised in the applicants address, learned counsel submitted that the applicant is properly before the court as a co-respondent and that there are sufficient averments before the court to justify the joinder of the co-respondent.
He finally submitted that the court can only strike out the name of the co-respondent from this petition after trial and the court finding that no case had been made out against the co-respondent. That the application be dismissed.
Otaji Esq. replying on point of law urged the court to grant the application and referred the court to S. 111 of the Matrimonial Causes Act.
In deciding this application I propose to deal with each of the questions and issues raised by the parties. I shall start with the applicant and state that for the avoidance of doubts all references made by the applicant to provisions of the High Court of Lagos Sate Civil Procedure rules 2004 are irrelevant to this proceedings as the proceedings are guided by the Matrimonial Causes Rules 1983 and the Matrimonial Causes Act 1970. see S. 112 of the Matrimonial Causes Act 1970, see also O.1 R. 2(2) of the Matrimonial Causes Rules 1983. Having said that I now go to the issues raised by the applicant in his address:
a. Whether or not applicant properly before the court as co-respondent? It is true that the designation of the applicant as co-respondent-is wrong under the act as a co-respondent is defined to be a person with whom the respondent (not the petitioner) is alleged to have committed adultery. in the answer to this petition the applicant herein is alleged to have committed adultery with the petitioner so that makes him a party cited and not a co-respondent.
See 0.1 R.4 of the rules.
Notwithstanding this misnomer however, since the objective of the court is to do substantial justice between the parties I do not think this error of misnomer is sufficient for me to strike out the name of the applicant from this suit.
b. Whether or not sufficient particulars of adultery the subject of this application is presented to the court? One of the most important elements of the offence of adultery is that there must be voluntary sexual intercourse between the parties and this can rarely be proved by direct evidence, so apart from direct evidence it is usually proved by circumstantial evidence some of which are: evidence of familiarity and opportunity to commit adultery by the parties b. Venereal Disease c. Visit to brothels by the parties, d. confessions and admissions of adultery, e. the birth of a child after the period of gestation, etc see Laws of Matrimonial Causes in Nigeria by Prof. S.A Adesanya pages 50-52. I have carefully looked at all processes filed by the parties herein with a view to finding concrete allegations of adultery against the applicant herein and find them very scanty especially when viewed alongside other specific allegations of adultery in the suit.
Since parties are bound by their pleadings and evidence of facts which are not pleaded goes to no issue, I confidently answer this question in the negative.
c. Whether or not from the facts disclosed in the answer/reply to the petition the respondent is not guilty of conndonnation of acts of adultery. There is no where in the answer/reply where the respondent condoned acts of adultery between the applicant and the petitioner, the respondent in fact specifically paragraph 8 of the answer/cross petition.
I now turn to the questions raised in the submission of Adesina Esq. learned counsel for the respondent and state firstly that the questions have been substantially addressed above save for the issue of the stage of the proceedings when the court can strike out the name of a co-respondent and whether or not this application is properly before the court.
The answer to the first part of this question is in section 111(2) of the MCA which states that "the court may at any stage of proceedings under this Decree, if it is satisfied that the allegations made in respect of a party to the proceedings are frivolous or vexatious, order, that that party be dismissed from the proceedings". So this impliedly means that the court has a discretion to order a party to be dismissed from proceedings where allegations against him are frivolous or vexatious. The answer to the second part can be found in section 32(3) and O.V1I R. 4(3) of the Matrimonial Causes Rules. The combine provisions are that a party. cited or co-respondent can only submit to the court that it should dismiss the proceedings against him by filing a reply for the purpose, but can also make a similar application at the close of the case for the party to the marriage who alleged the adultery if there is insufficient evidence of the adultery. This application is therefore premature in as much as it was made before the conclusion of the Respondent/Cross petitioner's case.

In the light of the above that this application fails and is hereby struck out.
I am however not unmindful of my discretion under S. 111(2) of the MCA and must state here that having thoroughly perused processes filed in this suit, I am satisfied that the allegations of adultery against the applicant are frivolous and vexatious and therefore order that the applicant be dismissed from these proceedings.


S. A. ONIGBANJO
JUDGE
12th May, 2005

Petitioner Present
Respondent Present
Co-Respondent absent
T. Adeoye with Muyi Amusan for the Petitioner
E. A. Adesina for the Respondent/Co-respondent.
N. O. Otaji for the Co-respondent


S. A. ONIGBANJO
JUDGE
12th May, 2005