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Matrimonial Causes Rules

 

 

1st day of October 1983

 

 

In exercise of the powers conferred upon me by sections 93 and 112 of the Matrimonial Causes Act 1970 and of all other powers enabling me in that behalf, I, Atanda Fatayi-Williams, Chief Justice of Nigeria, after consultation with the President of the Federal Court of Appeal and the Chief Judges of the States in Nigeria hereby make the following Rules:-

 

 

 

Order I

Preliminary

 

 

1.             These Rules may be cited as the Matrimonial Causes Rules 1983.

 

2.     (1)            These rules shall come into operation on the 1st day of October, 1983.

 

(2)            The rules of court for the time being in force in the High Court of Justice in England providing for the practice and procedure of that court in respect of divorce and matrimonial causes shall cease to apply in Nigeria when Rules come into force.

 

3.             These Rules are divided into the following Orders that is to say-

 

 

Order I

Preliminary (Rules 1-14)

 

 

Order II

Reconciliation (Rules 1 and 2)

 

 

Order III

Proceedings

 

 

Part 1.

Commencement of Proceedings (Rules 1-3).

Part 2.

Applications to the Court (Rules 4-8).

 

 

 

 

Order IV

Applications for Leave to Institute Proceedings for Dissolution of Marriage or Judicial Separation (Rules 1-4).

 

 

Order V

Petitions

 

 

Part 1.

General (Rules 1-10).

Part 2.

Petitions for Dissolution of Marriage (Rules 11-17).

Part 3.

Petitions for Nullity of Marriage (Rules 18-22).

Part 4.

Petitions for Judicial Separation (Rules 23 and 24).

Part 5.

Petitions for Restitution of Conjugal Rights (Rules 25 and 26).

Part 6.

Filing Petitions and Notices of Petitions (Rules 27-32).

 

 

Order VI

Service

 

Part 1.

General Provisions relating to Service of Documents (Rules 1-7).

Part 2.

Service of Petitions and Answers (Rules 8-10).

Part 3.

Service on Infants and Persons of Unsound Mind (Rules 11 and 12).

Part 4.

Proof of Service (Rules 13-18).

Part 2.

Service of Petitions and Answers (Rules 8-10).

Part 3.

Service on Infants and Persons of Unsound Mind (Rules 11 and 12).

Part 4.

Proof of Service (Rules 13-18).

 

 

 

 

 

 

Order VII

Pleadings

 

Part 1.

Answers (Rules 1-3).

Part 2.

Replies and Rejoinders (Rules 4-7).

Part 3.

Pleadings Generally (Rules 8-12).

Part 4.

Discontinuance (Rule 13).

 

 

 

 

 

 

Order VIII

Amendment of Pleadings, Supplementary Petitions and Supplementary Answers

 

 

Part 1.

Amendment of Pleadings (Rules 1-9).

Part 2.

Supplementary Petitions and Supplementary Answers (Rules 10-17).

 

 

 

 

Order IX

Parties

 

 

Part 1.

General (Rules 1-7).

Part 2.

Infants (Rules 8-12).

Part 3.

Persons of Unsound Mind (Rules 13-17).

Part 4.

Guardians ad litem (Rules 18-27).

 

 

 

 

 

 

Order X

Default in Pleading (Rules 1-3)

 

 

Order XI

Preparation for Trail

 

 

Part 1.

Preliminary (Rules 1-3).

Part 2.

Particulars, Discovery and Inspection of Documents (Rules 4-15).

Part 3.

Admissions and Notices to 1'n)duce (Rules 16-2()).

Part 4.

Medical Examination of Parties (Rules 21-27).

Part 5.

Discretion Statements (Rules 28-32.)

Part 6.

Compulsory Conferences (Rules 33-37).

Part 7.

Consolidation of Proceedings (Rule 38).

 

 

 

 

Part 8.

Setting Suits down for Trial (Rules 39-49). Order XTT.-Decrees (Rules 1-9).

 

 

 

 

 

 

Order XIII

Intervention by Persons not Parties to Proceedings (Rules 1-3)

 

 

Order XIV

Proceedings for Ancillary Relief

 

 

Part 1.

Preliminary (Rules 1-6).

Part 2.

Maintenance pending Suit (Rules 7-16).

Part 3.

Certificates of Means (Rules 17-19).

Part 4.

Custody (Rules 20-24).

Part 5.

Proceedings for Ancillary Relief instituted by a Person not a Party to the Marriage (Rule 25).

Part 6

Variation of Orders (Rule 26).

 

 

Order XV

Evidence

 

 

Part 1.

General (Rules 1-6).

Part 2.

Affidavits (Rules 7-20).

 

 

 

 

Order XVI

Affirmations and Defective Affidavits (Rules 1-2)

 

 

Order XVII

Enforcement of Decrees

 

 

Part 1.

General (Rules 1-3).

Part 2.

Attachment and Sequestration (Rules 4-6).

Part 3.

 

Part 4.

Other Means of Enforcing Decrees (Rule 17).

Part 5.

Execution of Warrants and Writs in other States or Territories (Rules 18-22).

Part 6.

Registration of Decrees in other Courts (Rules 23-29).

Part 7.

Registration of Maintenance Orders in Courts of Summary Jurisdiction (Rules 30-34).

 

 

 

 

 

 

Order XVIII

Proceedings Consequent on Decrees of Restitution of Conjugal Rights (Rules 7)

 

 

Order XIX

Registrars and Registries

 

 

Part 1.

Powers of Registrars (Rules 1-10).

Part 2.

Appeals from Registrars (Rule 11).

Part 3.

Registries (Rules iz-i8)

 

 

Order XX

Fees (Rules 1-5)

 

 

Order XXI

Effect of Non-compliance with these Rules or with an Order (Rules 1-4)

 

 

Order XXII

Proceedings for Jactitation of Marriage, Declarations, Etc

 

 

Part 1.

Application (Rule 1).

Part 2.

Petitions for Jactitation of Marriage (Rules 2 and 3).

Part 3.

Petitions for Declarations, &C. (Rules 4-7).

 

 

Order XXIII

Miscellaneous (Rules 1-14)

 

 

 

4.     (1)            In these Rules, unless the contrary intentions appears-

 

                        "address for service", in relation to a party to proceedings, means an address for service given in accordance with rule 12 of Order 1 of these Rules;

 

                        "application" means an application to a court for the purpose of instituting proceedings of a kind referred to in sub-rule (2) or (3) of Order III rule I of these Rules or an application to a registrar made under these Rules;

 

                        "Attorney-General" means the Attorney-General of the Federation.

 

                        "certificate of means" means a certificate granted by the court under Order XIV rule 18 of these Rules;

 

                        "co-respondent" means a party to proceedings who is specified in the petition instituting the proceedings as a person with whom the respondent is alleged to have committed adultery.

 

                        "court" means the High Court of a State or of the Federal Capital Territory.

 

                        "court division" means, in relation to a State or the Federal Capital Territory, a division in that State designated as a court division for the purpose of these Rules by the Chief Judge or any other authority authorized under the law of that State or the Federal Capital Territory to make rules of court or other provision in relation to the practice and procedure of the High Court of that State or the Federal Capital Territory;

 

                        "filed" means filed in the appropriate office of a court;

 

                        "Gazette" means the Official Gazette of the Federation;

 

                        "infant" means a person who has not attained the age of twenty-one years;

 

                        "intervener" means, in relation to proceedings, a person who becomes or has become a party to the proceedings by intervening under Part III of the Act or under Order IX rules 6 and 7 or Order XIV rule 25 of these Rules;

 

                        "party" cited" means a person specified in an answer to a petition as a person with whom the petitioner is alleged to have committed adultery;

 

                        "party named" means-

 

(a)            in relation to a petition- a person named in the petition who has intervened, under subsection (2) of section 32 of the Act, in proceedings instituted by the petition;

 

(b)            in relation to an answer to a petition-a person named in the answer who has intervened, under subsection (2) of section 32 of the Act, in proceedings instituted by either the answer or the petition;

 

                "petitioner" means the party who institutes or has instituted proceedings by petition;

 

                "person named" means-

 

(a)            in relation to a petition-a person specified in the petition as a person on or with whom the respondent is alleged to have committed rape or sodomy; and

 

(b)            in relation to an answer to a petition-a person specified in the answer as a person on or with whom the petitioner is alleged to have committed rape or sodomy;

 

                "pleading" means a petition, supplementary petition, answer, supplementary answer, reply or rejoinder;

 

                "Proceedings" means proceedings constituting a matrimonial cause;

 

                "respondent" means, in relation to proceedings for a decree of dissolution of marriage, nullity of marriage, judicial separation or restitution of conjugal rights, whether instituted by petition or by an answer to a petition, or in relation to proceedings that relate to such proceedings-the spouse of the petitioner;

 

                "registrar" means the Chief Registrar, Deputy Chief Registrar, or registrar of the court;

 

                "sealed" means sealed with the seal of the court;

 

                "stamped envelope" means an envelope having, impressed on it or affixed to it postage stamps that are valid in the Federation for the correspondence of private individuals and the value of which is not less than the postage payable for the transmission of a letter, weighing not more than twenty grammes, posted in the Federation to an address in the Federation;

 

                "State" means a State in the Federation of Nigeria;

 

                "the Act" means the Matrimonial Causes Act 1970;

 

                "the definition of `matrimonial cause'" means the definition of "matrimonial cause" in sub-section (1) of section 114 of the Act.

                        

(2)            Subject to Order XIV rule 1 of these Rules, references in these Rules to a marriage shall be read as including references to a purported marriage and reference to the spouse of a person shall be read as including references to the purported spouse of a person.

 

5.             Where a registrar is required by any of these Rules to do an act of a merely administrative nature, it is sufficient if the act is done on behalf of the registrar by another officer of the court or by a clerk in the office of the registrar or of such an officer.

 

6.     (1)            In the title of a document filed in, or issued out of, the office of a court in connexion with proceedings instituted by petition, a party to the proceedings who is the petitioner or respondent or a co-respondent, a party cited, a party named or an intervener with the meaning of these Rules shall be designated by whichever of those expression is applicable.

 

(2)            For the purpose of sub-rule (1) of this rule a document filed or issued for the purpose of proceedings that are instituted by application to a court and are in relation to proceedings instituted by a petition shall be deemed to have been filed or issued in connexion with the proceedings instituted by that petition.

 

(3)            In the title of a document filed in or issued out of the office of a court in connexion with proceedings of a kind referred to in paragraph (e) of the definition of "matrimonial cause", the party to the proceedings who institutes or instituted the proceedings shall be designated as the applicant and any other party to the proceedings shall be designated as a respondent.

 

(4)            In any part (not being the title) of a document filed in or issued out of the office of a court in connexion with proceedings-

 

(a)            a party to the proceedings may be referred to by the designation by which the party is required by the preceding provisions of this rule to be designated in the title to the document; and

 

(b)            a person, not being a party to the proceedings, who is a person named within the meaning of these Rules may be referred to by that designation.

 

7.     (1)            Subject to this rule, where a document relating to proceedings is required by these Rules to be filed, the documents shall, unless the contrary intention appears, be filed in the office of the court in which the petition or application instituting the proceedings was filed.

 

(2)            Where proceedings have been transferred from a court to another court under section 9 of the Act a document relating to the proceedings shall be filed in the appropriate office of the court to which the proceedings have been transferred.

 

(3)            Where a decree has been registered in a court under section 89 or section 91 of the Act, a document relating to the enforcement of the decree by that court shall be filed in the appropriate office of that court.

 

(4)            During the trial of proceedings or of any application relating thereto by a court, a document relating to the proceedings or application may, by leave of the court, be filed in court.

 

8.     (1)            Where a period of time dating during from a given day, act or event is prescribed by or allowed under these Rules for doing an act or taking a proceeding, the time shall, unless the contrary intention appears, be reckoned exclusive of the day, or of the day of the act or event, from which the time dates.

 

(2)            Where the time for doing an act or taking a proceeding expires on a Saturday or Sunday or on a day that is a public holiday in the place at which the act is to be or may be done, or the proceeding is to be or may be taken, the act may be done or the proceeding may be taken on the first day following that is not a Saturday, Sunday or public holiday.

 

(3)            Except as otherwise provided in relation to the High Court of a State or of the Federal Capital Territory by a rule made by virtue of sub-section (2) of section 112 of the Act, time runs, in connexion with any proceedings in such a court, during any vacation of that court.

 

(4)            Where a period of time dating from a given day, act or event, being a less period than five days, is prescribed by or allowed under these Rules for doing an act or taking a proceeding, a Saturday or Sunday or a day that is a public holiday in the place at which the act is to be or may be done, or the proceeding is to be or may be taken, shall not be reckoned in computing the period.

 

(5)            In reckoning a period of clear days in relation to the doing of an act in connexion with proceedings or the taking of a proceeding in a court, any day on which the office of the court is not open shall be excluded.

 

9.     (1)            Proceedings of a kind referred to in paragraph (c), (d) or (e) of the definition of "matrimonial cause" may be heard by a court sitting in chambers.

 

(2)            A court sitting in open court may adjourn proceedings of a kind referred to in sub-rule (1) of this rule for consideration by the court sitting in chambers.

 

(3)            A court sitting in chambers may adjourn proceedings of a kind referred to in sub-rule (1) of this rule for consideration by the court sitting in open court.

 

(4)            This rule does not authorise a court sitting in chambers to hear proceedings that relate to proceedings for an act of a kind referred to in paragraph (a) of the definition of "matrimonial cause" where it is practicable for the court to hear those proceedings at the same time as the proceedings for such an act.

 

10.   (1)            Where a court is satisfied that-

 

(a)            the provisions of the Act relating to practice and procedure and the rules made under the Act do not make provision with respect to the practice and procedure applicable in the circumstances of a particular case; or

 

(b)            difficult arises or doubt exists as to the practice or procedure applicable in the circumstances of a particular case, the court may give such directions with respect to the practice and procedure to be followed in the case as the court considers necessary.

 

(2)            Subject to any order made by a court on appeal, an act done or proceeding taken in accordance with a direction in force under sub-rule (1) of this rule shall be deemed to have been duly done or taken.

 

(3)            Where a direction given by a court under sub-rule (1) of this rule is varied by a court on appeal, any act done or proceeding taken in accordance with the direction as so varied shall be deemed to have been duly done or taken.

 

11.   (1)            Subject to this rule, where proceedings that are in relation to proceedings for a decree of a kind referred to in paragraph (a) of the definition of "matrimonial cause" (in this rule referred to as "the principal proceedings") are heard by a court before the trial of the principal proceedings, the court may, in addition to determining the first-mentioned proceedings-

 

(a)            permit a party to the principal proceedings, whether or not her is a party to the first-mentioned proceedings, to make application for any order, required for the purpose of preparing the principal proceedings for trial, that could be made upon the hearing of proceedings instituted for the purpose of seeking such an order;

 

(b)            hear and determine the application in accordance with the provisions of this rule; and

 

(c)            make, upon the determination of the application, the order sought by the application or such other order as to the court seems meet.

 

(2)        An application for an order referred to in sub-rule (1) of this rule-

 

(a)            may be made orally to a court without the filing of any affidavit in support of the application; and

 

(b)            may be so made to a court notwithstanding the fact that proceedings seeking the order have been instituted but have not been heard and determined by a court.

 

(3)            Where an application for an order referred to in sub-rule (1) of this rule is made to a court in a case where proceedings seeking that order have been instituted but not heard by a court-

 

(a)            any affidavit filed for the purpose of those proceedings may, by leave of the court, be admitted in evidence upon the hearing of the application; and

 

(b)            the order made by the court upon the determination of the application shall, unless the court otherwise orders, be deemed to be the order of the court upon the determination of those proceedings.

 

(4)            Without limiting the generality of sub-rule (1) of this rule, application may be made to a court under this rule for an order with respect to-

 

(a)            service of documents and dispensing with the service of documents;

 

(b)            discovery and inspection of documents;

 

(c)            admission of fact of documents;

 

(d)            medical inspection of the petitioner and respondent in the principal proceedings;

 

(e)            the day, time and place for the holding of a conference for the purpose of Part 6 of Order XI; of these rules;

 

(f)            the place, time and mode of trial;

 

(g)           the furnishing of evidence of facts by affidavit at the trial of the principal proceedings; and

 

(h)           the consolidation of the principal proceedings with other proceedings.

 

(5)            An application under sub-rule (1) of this rule may be heard by a court notwithstanding that any facts relied on in support of, or in opposition to, the application are not verified by affidavit or by evidence given orally upon the hearing of the application.

 

(6)            Nothing in sub-rules (1) to (5) of this rule shall be taken to prevent the court-

 

(a)            from requiring service of an application, or of notice of an application, under sub-rule (1) of this rule to be effected on a party to the application; or

 

(b)            from requiring the facts, or any of the facts, relied on in support of, or in opposition to, such an application to be verified by affidavit or by evidence given orally upon the hearing of the application.

 

12.   (1)            Unless the court otherwise orders-

 

(a)            a person is not entitled to file a document for the purpose of proceedings unless by that document, or by a document previously filed by him, he gives or has given an address for service that is, under this rule, his address for service for the purpose of those proceedings; and

 

(b)            a person is not entitled to be heard upon the trial or hearing of any proceedings, or upon the hearing of an application to a court or a registrar in relation to any proceedings, unless he has previously given an address for service that is, under this rule, his address for service for the purpose of those proceedings.

 

(2)            A person who does not have an address for service for the purpose of proceedings may give such an address by stating it as his address for service-

 

(a)            if the first document filed by him in those proceedings is a petition, answer or application-in that document; or

 

(b)            in any other case-in a notice of address for service, in accordance with Form 1, filed for the purpose, and, in the case of a notice referred to in paragraph (b) of this sub-rule, serving a copy of the notice on each other party to the proceedings who has an address for service for the purpose of the proceedings.

 

(3)            A person who has an address for service for the purpose of proceedings may change that address by filing a notice of change of address for service, in accordance with Form 2, and serving a copy of the notice on each other party to the proceedings who has an address for service for the purpose of the proceedings.

 

(4)            The address given as a person's address for service shall, in the case of a person who is represented by a legal practitioner, be the address of the legal practitioner acting as the agent of that legal practitioner.

 

(5)            The address for service given, or last given, by a person in accordance with this rule in relation to any proceedings is his address for service for the purpose of those proceedings and also for the purpose of any other proceedings that constitute a matrimonial cause and are related to those proceedings, or to which those proceedings are related.

 

13.           In these Rules, a reference to a Schedule by number shall be read as a reference to the Schedule so numbered to these Rules and a reference to a Form by number shall be read as a reference to the Form so numbered in the First Schedule to these Rules.

 

14.   (1)            Strict compliance with the Forms in the First Schedule is not necessary and substantial compliance, or such compliance as the circumstances of a particular case allow, is sufficient.

 

(2)            Where a person referred to in a Form in the First Schedule is not represented by a legal practitioner, a reference in the Form to the legal practitioner for the person shall be read as a reference to the person.

 

(3)            Where the word "Title" appears on a Form in the First Schedule it shall be taken to indicate that a document required to be in accordance with that Form shall-

 

(a)            if it is a document to which Order III rule 2 of these Rules applies- be institute in accordance with that rule; or

 

(b)            in any other case-bear an appropriate title.

 

(4)            A Form in the First Schedule shall be completed in accordance with such directions as are specified in the

 

 

Order II

Reconciliation

 

 

1.             In this Order, " a document to which this Order applies" means-

 

(a)            a petition or answer instituting proceedings for a decree of dissolution of marriage on a ground other than a ground specified in paragraph (h) of section 15 (2) of the Act,

 

(b)            a petition or answer instituting proceedings for a decree of judicial separation under section 39 of the Act on a ground other than the ground specified in paragraph (h) of section 15 (2) of the Act; or

 

(c)            an application for leave under section 30 of the Act to institute proceedings for a decree of dissolution of marriage or judicial separation, but does not include a petition instituting, by leave of a court under section 30 of the Act, proceedings for a decree of dissolution of marriage or judicial separation, a supplementary petition or a supplementary answer.

 

2.             Where a document to which this Order applies is filed on behalf of a party who is represented by a solicitor, the document is not effective for the purpose of proceedings under the Act unless a certificate, in accordance with Form 3 or Form 3A (whichever is appropriate) and signed by the solicitor personally, is written on the document.

 

 

Order III

Proceedings

 

 

Part 1

Commencement of Proceedings.

 

 

1.     (1)            Proceedings required by subsection (1) of section 54 of the Decree to be instituted by petition shall be instituted by filing a petition, addressed to a court having jurisdiction under the Act, in a proper office of that court.

 

(2)            Where leave has been granted under subsection (3) of section 54 of the Act for the institution of proceedings of a kind to which that subsection applies otherwise than in the relevant petition or answer, the proceedings shall be instituted by filing an application to the court.

 

(3)            Subject to sub-rules (1) and (2) of this rule, proceedings in a matrimonial cause shall, except as otherwise provided in these Rules, be instituted by filing an application to a court having jurisdiction under the Act in the proper office of that court.

 

(4)            Where proceedings to which sub-rule (3) of this rule applies are instituted in relation to pending proceedings, the proceedings shall be instituted in the court in which those proceedings are pending.

 

(5)            Subject to the Act and to these Rules where proceedings to which sub-rule (3) of this rule applies are instituted in relation to completed proceedings, the proceedings were heard and determined or in a court in which the decree of that court has been registered.

 

(6)            Where an application relating to proceedings is, under these Rules, required or permitted to be made to a court, the application shall be made by filing-

 

(a)            in the proper office of the court in which the proceedings are pending; or

 

(b)            if the application relates to the enforcement of a decree by a court in which the decree has been registered, in the proper office of that court, an application in that court.

 

(7)            For the purposes of this rule, proceedings determined in an appellate Court on appeal from proceedings commenced in a High Court of a State or of the Federal Capital Territory shall be deemed to have been determined in the court from which the proceedings were taken on appeal or commenced.

 

(8)            Nothing in sub-rule (3) of this rule shall be taken to authorize the institution of proceedings without the leave of the court in a case where such leave would be otherwise required.

 

2.     (1)            A document filed in, or issued out of, the office of a court in relation to proceedings instituted by petition shall be instituted in accordance with Form 4.

 

(2)            Subject to these Rules, the title to a document referred to in sub-rule (1) of this rule shall include the full name and the designation of every party to the proceedings instituted by the petition (including any person who, upon the filing of that document, will become a party).

 

(3)            Where proceedings are or have been instituted under the Act for a decree of nullity of marriage on the ground that a marriage is void, the title to a document filed in, or issued out of, the office of a court in relation to the proceedings shall contain the surname, at the date of the institution of the proceedings, of the female party to the purported marriage followed by the word "otherwise" and followed then by the name that was that party's surname immediately before the solemnization of the purported marriage.

 

(4)            Where a person intervenes in proceedings under section 65 of the Act or under these Rules, the person becomes a party to the proceedings, and the title to the proceedings shall be deemed to have been amended accordingly.

 

(5)            Subject to Order IX of these Rules, where, after the institution of proceedings in a matrimonial cause, a pleading is filed, or an amendment to a pleading is made, by which the petitioner or respondent is alleged to have committed adultery with a specified person, whether or not a decree is sought on the ground of the adultery, that person becomes a party to those proceedings, and the title of those proceedings shall be deemed to have been amended accordingly.

 

(6)            Where a party to proceedings is dismissed from the proceedings, the title to the proceedings shall be deemed to have been amended by omitting the name and designation of the party.

 

3.     (1)            Subject to sub-rule (3) of this rule, the registrar of the court in which proceedings are instituted, or to which proceedings are transferred, shall cause a distinguishing number to be allotted to the proceedings.

 

(2)            Where proceedings that constitute a matrimonial cause had been instituted in the High Court of a State or of the Federal Capital Territory before the commencement of the Act, the distinguishing number applicable to those proceedings immediately before the commencement of these Rules shall be deemed to have been allotted to those proceedings by the registrar of that High Court under this rule.

 

(3)            Where, after the commencement of these Rules, proceedings under the Act are instituted in a court in relation to concurrent, pending or completed proceedings to which a number has been allotted or is deemed to have been allotted under this rule, that number shall be deemed to have been allotted to those first-mentioned proceedings.

 

(4)            Where a decree made by a court is registered in another court under section 89 or section 91 of the Act, the registrar or other proper officer of that court shall cause a distinguishing number to be allotted to the decree.

 

(5)            A document filed in, or issued out of, the office of a court in connexion with proceedings or in connexion with a decree in respect of which a distinguishing number has been allotted, or is deemed to have been allotted, under this rule shall have that number endorsed on the document.

 

 

Part 2

Applications to the Court

 

 

4.     (1)            Subject to these Rules-

 

(a)            an application to a court referred to in sub-rule (2) or (3) of rule 1 of this Order, and in sub-rule (6) of that rule shall be in accordance with Form 5; and

 

(b)            the affidavits intended to be used in support of the application shall be filed at the same time as the application is filed.

 

(2)            Subject to these Rules, an application-

 

(a)            shall specify the date on which it is proposed that the application will be heard by the court or shall state that the application will be so heard on a date to be fixed by the court;

 

(b)            shall specify the place at which it is proposed that the application will be heard by the court;

 

(c)            shall specify the order that the court will, on the hearing of the application, be asked to make; and

 

(d)            shall be signed by the legal practitioner representing the applicant in connexion with the application, or if the applicant is not so represented by a legal practitioner, by the applicant.

 

(3)            An application shall bear date the day on which it is filed.

 

(4)            Notwithstanding sub-rule (1) of this rule, the court may permit the use, in support of an application, of an affidavit that was filed subsequently to the filing of the application.

 

5.             Where an application to a court relates to pending or completed proceedings, the applicant and each other party to those pending or completed proceedings who is affected by the application are parties to the application.

 

6.     (1)            Subject to sub-rule (2) and (3) of this rule, when an application to a court has been filed, the applicant shall cause service of the application to be effected on each other party to the application.

 

(2)            It is not necessary for service of an application to be effected on a party to the application-

 

(a)            in a case where the application is of a kind that is permitted by these Rules to be made ex parte; or

 

(b)            in a case where service of the application on the party is dispensed with.

 

(3)            Subject to any provisions of these Rules that expressly require service of an application to be effected on a party to the application, it is not necessary for service of the application to be effected on a party to the application unless that party has an address for service.

 

(4)            Service of an application on a party shall be effected by serving a copy of the application on the party or his legal practitioner.

 

(5)            Unless a judge otherwise directs, there shall be at least three clear days between the service of the application and the day named in the application for the hearing of the application.

 

7.     (1)            The grounds on which a court will be asked to make the order specified in an application, and the facts on which the applicant proposes to rely in support of the application for that order, shall be stated in the affidavits filed in support of the application.

 

(2)            Where service of an application is effected on a party to the application, a copy of each affidavit filed in support of the application shall be served on the party at the time of the service of the application or within a reasonable time before the hearing of the application.

 

8.     (1)            A party to an application other than the applicant may, before the hearing of the application or, by leave of the court during the hearing of the application, file an affidavit in answer to an affidavit in support of the application.

 

(2)            A party filing an affidavit in answer shall cause a copy of the affidavit in answer to be served on each other party to the application who has an address for service as soon as practicable after the affidavit in answer has been filed.

 

(3)            A party on whom a copy of an affidavit in answer is served may, before the hearing of the application or, by leave of the court during the hearing of the application, file an affidavit in reply to that affidavit.

 

(4)            A party filing an affidavit in reply to an affidavit filed by another party to the application shall cause a copy of the affidavit in reply to be served on each other party who has an address for service as soon as practicable after the affidavit in reply has been filed.

 

 

 

Order IV

Applications for leave to institute proceedings for dissolution of marriage or judicial Separation may be made ex parte

 

 

 

1.             An application under section 30 or 40 of the Act for leave to institute proceedings may be made ex parte.

 

2.             The affidavit in support of an application under section 30 or 40 of the Act for leave to institute proceedings for a decree of dissolution of marriage or of judicial separation, as the case may be, shall-

 

(a)            include particulars of the exceptional hardship that would be imposed on the applicant by the refusal to grant the leave or particulars of the exceptional depravity on the part of the other party to the marriage that is alleged, as the case may be;

 

(b)            state the ground upon which, if leave is granted, the applicant intends to petition for the decree;

 

(c)            state whether or not the applicant has made a previous application for leave, under section 30 or 40 of the Act, to institute proceedings for such a decree, and, if he has mad a previous application, also state the date and grounds on which, and the court to which, the previous application was made and whether that application was granted;

 

(d)            state whether or not a child of the marriage is living, and, if a child of the marriage is living, also state-

 

(i)             the name of the child;

 

(ii)             the date of birth of the child; and

 

(iii)           the place at which, and persons with whom, the child is residing;

 

(e)            state whether an attempt has been made to effect a reconciliation between the parties to the marriage and, if such an attempt has been made, state particulars of the attempt; and

 

(f)            state particulars of any other circumstance that may assist the court in determining whether there is a reasonable probability of a reconciliation between the parties before the expiration of the period of three years after the date of the marriage.

 

3.     (1)            At the time when an application under section 30 or 40 of the Act for leave to institute proceedings is filed, the applicant shall, unless he is unable to do so, also file a marriage certificate in respect of the marriage to which the application relates.

 

(2)            If the marriage filed in accordance with sub-rule (1) of this rule is not written in the English Language, a translation, in the English language, of the marriage certificate shall be filed at the same time.

 

(3)            A translation of a marriage certificate filed in accordance with sub-rule (2) of this rule shall be verified as a translation by the person who made the translation by an affidavit in which he also states that he is competent to make a translation of the marriage certificate.

 

(4)            Where an applicant is unable, for any reason, to comply with sub-rule (1) of this rule, the applicant shall state in the affidavit filed in support of the application the circumstances by reason of which he is unable so to comply.

 

(5)            In this rule "marriage certificate", in relation to a marriage, whether solemnized in Nigeria or elsewhere, has the same meaning as in Order V, rule 27 (7) of these Rules.

 

4.             A petitioner who institutes proceedings for dissolution of marriage or of judicial separation by leave of the court under section 30 or section 40 of the Act, as the case may be, shall cause service of a copy of the order of the court granting the leave to be effected on his spouse at the same time as service of the petition is effected on his spouse.

 

 

Order V

Petitions

 

 

Part 1

General

 

 

1.     (1)            A petition shall state the full name of each party to the proceedings and, in addition-

 

(a)            the address and occupation of the petitioner;

 

(b)            the address and occupation, so far as known to the petitioner, of each other party to the proceedings;

 

(c)            the name of the wife immediately before the marriage, or alleged marriage, as the case may be; and

 

(d)            the address and occupation, so far as known to the petitioner, of any person, not being a party to the proceedings, specified in the petition as a person with whom or on whom the respondent is alleged to have committed adultery, rape or sodomy.

 

(2)            Where the address, at the date of the petition, of a party or person referred to in sub-rule 1 of this rule is not known to the petitioner, the petition shall state that the address is not known to the petitioner and also state the last address (if any) of the party or person known to the petitioner.

 

(3)            A petition shall state-

 

(a)            particulars of the marriage or purported marriage to which he petition relates;

 

(b)            particulars relating to the birth of the parties to the marriage or purported marriage;

 

(c)            particulars relating to the domicile or residence of the petitioner in Nigeria;

 

(d)            particulars of the cohabitation of the parties to the marriage;

 

(e)            the particulars relating to the children of the parties to the marriage and the children of either party to the marriage required by rule 8 of this Order;

 

(f)            particulars of previous proceedings between the parties to the marriage;

 

(g)            the facts, but not the evidence by which the facts are to be proved, relied on as constituting the ground or each ground specified in the petition, stating, if more than one ground is so specified, the facts relating to each ground, as far as practicable, separately;

 

(h)            in the case of a petition for a decree of dissolution of marriage or judicial separation-the matters required by rule 7 of this Order;

 

(i)            in the case of a petition for a decree of dissolution of marriage or nullity of a voidable marriage particulars concerning the arrangements referred to in rule 14 or 15 of this Order; and

 

(j)            in the case of a petition instituting proceedings of a kind referred to in paragraph (c) of the definition of "matrimonial cause"- the matters required by Order XIV, rule 4 of these Rules.

 

(4)            For the purpose of paragraph (a) of sub-rule 3 of this rule, the particulars of the marriage or purported marriage that are required to be stated in a petition are-

 

(a)            the place at which and date on which the marriage or purported marriage was solemnized;

 

(b)            the nature of the ceremony by virtue of which the marriage or purported marriage was solemnized;

 

(c)            if that ceremony was a religious ceremony-the religious denomination according to the rites of which the marriage or purported marriage was solemnized; and

 

(d)            the conjugal status of the petitioner and respondent, respectively, immediately before the solemnization of the marriage or purported marriage.

 

(5)            Where a petitioner has been previously married, his petition shall state-

 

(a)            the date of the previous marriage or of each previous marriage, as the case may be;

 

(b)            the means by which the previous marriage or each previous marriage was dissolved; and

 

(c)            if a previous marriage was dissolved by a court-the name of the court by which, and the date on which, the marriage was dissolved.

 

(6)            Where the respondent to a petition has been previously married, the petition shall, so far as those facts are known to the petitioner, state-

 

(a)            the date of the previous marriage or of each previous marriage, as the case may be;

 

(b)            the means by which the previous marriage or each previous marriage was dissolved; and

 

(c)            if a previous marriage was dissolved by a court-the name of the court by which, and the date on which, that marriage was dissolved.

 

2.     (1)            For the purpose of paragraph (b) of sub-rule (3) of rule 1 of this Order, the particulars relating to the birth of the parties to the marriage that are required to be stated in a petition are the date and place of birth of each party to the marriage that are required to be stated in a petition are the date and place of birth of each party to the marriage.

 

(2)            Where a party to the marriage was not born in Nigeria, particulars of the date on which the party entered Nigeria or, if the party has re-entered Nigeria after having left Nigeria, the date on which the party first entered Nigeria shall be stated in a petition in addition to the particulars referred to in the last preceding sub-rule.

 

3.     (1)            This rule relates to the particulars relating to the domicile or residence of a petitioner in Nigeria that are required to be stated in a petition for the purpose of paragraph (c) of sub-rule (3) of rule 1 of this Order.

 

(2)            The petition shall state that the petitioner is, within the meaning of the Act, domiciled or resident, as the case may be, in Nigeria.

 

(3)            The facts, but not the evidence by which the facts are to be proved, upon which the court will be asked to find that the petitioner is, within the meaning of the or resident, as the case may be, in Nigeria shall be stated in the petition in as a form as the nature of the case allows.

 

4.     (1)            For the purpose of paragraph (d) of sub-rule 3 of rule 1 of this Order, the particulars of the cohabitation of the parties that are require to be included in a petition are, subject to sub-rule (2) and (3) of this rule, particulars, to the best of the recollection of the petitioner-

 

(a)            of the places of residence at which the parties to the marriage have cohabited for periods that, having regard to all the circumstances, were substantial;

 

(b)            of the periods during which the parties cohabited at those places; and

 

(c)            of the date on which, and circumstances in which, cohabitation between the parties ceased or last ceased, as the case may be.

 

(2)            Where the parties to the marriage have never cohabited, the petition shall include a statement to that effect.

 

(3)            Where the parties to the marriage have never cohabited at a place of residence, or have never cohabited at a place of residence for a period that, having regard to all the circumstances, was substantial, the petition shall include a statement to that effect and a statement of the circumstances in which they cohabited during the marriage.

 

5.     (1)            This rule applies to-

 

(a)            any child of the marriage living at the date of the petition who has not attained the age of twenty-one years;

 

(b)            any child of the marriage who has attained the age of twenty-one years and in respect of whom an order is sought under sections 70,71 or 72 of the Act,

 

(c)            any child of the parties to the marriage who has been adopted by another person or other persons or has been placed by the parties in the care of a person or persons with a view to the adoption of the child by that person or those persons or by another person or other persons; and

 

(d)            any child of a party to the marriage who-

 

(i)             has, at any time since the marriage, ordinarily been a member of the household of the husband and wife; and

 

(ii)            has been adopted by another person or other persons or has been placed by that party in the care of a person or persons with a view to the adoption of the child by that person or those persons or by another person or other persons.

 

(2)            The particulars relating to any child to whom this rule applies that are to be stated in a petition are-

 

(a)            in the case of a child referred to in paragraph (a) or (b) of sub-rule (1), of this rule-the full name and date of birth of the child and the name of the persons with whom the child is residing ; or

 

(b)            in the case of a child referred to in paragraph (c) or (d) of that sub-rule-

 

(i)             the full name (if any) under which the parties, or either of them, registered the birth of the child;

 

(ii)            the date of birth of the child; and

 

(iii)           the date on or about which consent to the adoption of the child was given or the child was placed in the care of another person or persons with a view to his adoption.

 

(3)            If there are no children to whom this rule applies the petition shall include a statement to that effect.

 

(4)            Where the petitioner disputes the parentage of a child born, since the solemnization of the marriage to which the petition relates, to the female party to the marriage, the petition shall also state that the parentage of the child is in dispute and the grounds on which the parentage of the child is disputed.

 

(5)            Where a person who is deemed, by virtue of section 69 of the Act, to be a child of the marriage to which the petition relates is living at the date of the petition, the petition shall also state the circumstances that result in the person being so deemed to be a child of the marriage.

 

6.     (1)            This rule relates to the particulars of previous proceedings that are required to be stated in a petition for the purpose of paragraph (f) of sub-rule (3) of rule 1 of this Order of these Rules.

 

(2)            Subject to sub-rule (3) of this rule, the petition shall state particulars of-

 

(a)            any proceedings that have, since the marriage to which the petition relates, been instituted, whether in Nigeria or elsewhere, in any court between the parties to the marriage; and

 

(b)            any proceedings concerning the maintenance, custody, guardianship, welfare, advancement or education of a child of that marriage that have been instituted, whether in Nigeria or elsewhere, otherwise than between those parties.

 

(3)            Where no proceedings referred to in sub-rule (2) of this rule have been instituted, the petition shall include a statement to that effect.

 

(4)            Where the petition includes particulars of any proceedings referred to in sub-rule (2) of this rule, being proceedings that have been heard and determined by a court-

 

(a)            particulars of the order made in the proceedings, and the date on which and court by which the order was made, shall be stated in the petition; and

 

(b)            the petition shall also state whether the parties to the marriage have cohabited since the making of that order.

 

(5)            Where an order of a court, or an arrangement, making provision for the payment of maintenance in respect of a party to a marriage or a child of a marriage is in force, a petition relating to the marriage shall state the amount of maintenance payable under the order of agreement.

 

7.     (1)            A petition instituting proceedings for a decree of dissolution of marriage or of judicial separation upon a ground specified in any of paragraphs (a) to (g), inclusive, of section 15 (2) of the Act or section 39 of the Act, as the case may be, shall contain-

 

(a)            a statement that the petitioner has not connived at that ground; and

 

(b)            a denial that he has condoned that ground, or a statement of all facts relevant to the question whether he has condoned that ground, including any facts relevant to the question whether that ground has been revived.

 

(2)            A petition instituting proceedings for a decree of dissolution of marriage or of judicial separation shall contain a statement that, in bringing the proceedings, the petitioner has not been guilty of collusion with intent to cause a perversion of justice.

 

8.     (1)            Where a petition institutes, by his petition, proceedings with respect to the maintenance of the petitioner, settlements, damages in respect of adultery, the custody or guardianship of infant children of the marriage or the maintenance, welfare, advancement or education of children of the marriage, the petition shall contain particulars of the orders sought by him, and the facts relating to the proceedings, required by Order XIV rule 4 of these Rules.

 

(2)            Where a petitioner is seeking an order as to the costs of any proceedings instituted by his petition, the petition shall set out particulars of the order sought as to costs.

 

9.     (1)            A petition shall bear date the day on which it is filed.

 

(2)            Where a petition is settled by a legal practitioner, the name of the legal practitioner shall be written on the petition.

 

(3)            A petition shall be signed-

 

(a)            if the petitioner is represented by a legal practitioner-by the legal practitioner personally; or

 

(b)            if the petitioner is not represented by a legal practitioner-by the petitioner.

 

10.   (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 circumstances 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.

 

 

Part 2

Petitions for Dissolution of Marriage

 

 

11.           A petition for a decree of dissolution of marriage shall be in accordance with Form 6.

 

12.   (1)            A petition for a decree of dissolution of marriage shall state the ground and the facts in support thereof on which the decree is sought.

 

(2)            For the purpose of these Rules, a fact specified in a paragraph of section 15 (2) of the Act and specified in the first column of the following table may be stated in a pleading or affidavit in the terms set out in the second column of that table opposite the paragraph:-

 

 

First column

Paragraph of section 15 (2) of the Act

Section column

Terms in which ground may be stated

paragraph (a)

refusal to consummate

paragraph (b)

adultery and intolerability

paragraph (c) ..

Cruelty

paragraph (d) ..

desertion for at least one year

paragraph (e) ..

separation for at least 2 years

paragraph (f) ..

lived apart for at least three years

paragraph (g) ..

non-compliance with restitution decree

paragraph (h) ..

presumption of death.

 

 

13.           Where a petitioner for decree of dissolution of marriage on a ground specified in any of paragraph (a) to (g), inclusive, of section 15 (2) of the Act has committed adultery since the marriage but before the filing of his petition, his petition shall state that the court will be asked to make the decree notwithstanding the facts and circumstances set out in his discretion statement.

 

14.   (1)           Where, at the date of a petition for a decree of dissolution of marriage, children of the marriage to which the petition relates are living, the petition shall state-

 

(a)            the arrangements proposed by the petitioner concerning the welfare and, where appropriate, the advancement and education, of the children who are then living; or

 

(b           the petitioner's reasons for not stating in the petition the arrangements so proposed.

 

(2)            In sub-rule (1) of this rule, "children of the marriage" means-

 

(a)            children of the marriage who are not likely to have attained the age of sixteen years before the decree of dissolution of marriage is made; and

 

(b)            any children of the marriage in relation to whom the petitioner seek an order under sub-section (3) of section 71 of the Act.

 

15.           A petition for a decree of dissolution of marriage on the ground specified in paragraph (e) or (f) of section 15 (2) of the Act may state the arrangements made or proposed by the petitioner for the provision of maintenance or other benefits referred to in sub-section (2) of section 70 of the Act for the respondent upon the decree becoming absolute.

 

16.           A petition for a decree of dissolution of marriage on the ground specified in paragraph (h) of section 15 (2) of the Act shall, in addition to the facts stated in pursuance of paragraph (g) of sub-rule 3 of rule 1 of this Order, state-

 

(a)            the latest date on which the petitioner has reason to believe the respondent to have been alive and the circumstances in which the petitioner has reason so to believe; and

 

(b)            particulars of any inquiries made by the petitioner for the purpose of locating the respondent.

 

17.           Where a person specified in a petition for a decree of dissolution of marriage as a person with or on whom the respondent has committed adultery, rape or sodomy has, to the knowledge of the petitioner, died before the date of the petition, the petition shall state that the person so specified is dead and the date of his death.

 

 

Part 3

Petition for Nullity of Marriage

 

 

18.           A petition for a decree of nullity of a marriage shall be in accordance with Form 6.

 

19.           A petition for a decree of nullity of marriage shall indicate whether the decree is sought on the ground that the marriage is void or on the ground that the marriage is voidable, and shall state the nature of the defect in the marriage.

 

20.           In a petition for a decree of nullity of marriage, if the domicile of either of the parties immediately before the marriage is relevant to the determination of the proceedings, the petition shall state that domicile.

 

21.   (1)            In a petition for a decree of nullity of marriage on the ground that a marriage is voidable by virtue of paragraph (b), (c) or (d) of subsection (1) of section 5 of the Act, the date on which the petitioner discovered the existence of the facts constituting the ground and the date on which marital intercourse last took place with the consent of the petitioner shall be stated in addition to any other facts stated in pursuance of paragraph (g) of sub-rule 3 of rule 1 of this Order.

 

(2)            A petition instituting proceedings for a decree of nullity of marriage on a ground referred to in sub-rule 1 of this rule shall contain a statement that the petitioner was, at the time of the marriage, ignorant of the fact constituting the ground.

 

22.           Order V rule 14 of these Rules shall apply in relation to a petition for a decree of nullity of a voidable marriage as if the references in that rule to a decree of dissolution of marriage were references to a decree of nullity of a voidable marriage.

 

 

Part 4

Petitions for judicial Separation

 

 

23.           A petition for a decree of judicial separation shall be in accordance with Form 6.

 

24.           The provisions of rules 12, 13, and 17 of this Order, in so far as they are applicable to the circumstances of the particular case, apply in relation to a petition for a decree of dissolution of marriage were references to a petition for a decree of judicial separation.

 

 

Part 5

Petitions for Restitution of Conjugal Rights

 

 

25.           A petition for a decree of restitution of conjugal rights shall be in accordance with Form 7.

 

26.   (1)            In a petition for a decree of restitution of conjugal rights-

 

(a)            the date on which the petitioner and respondent last cohabited, and the circumstances in which cohabitation between the petitioner and respondent ceased or last ceased, as the case may be; and

 

(b)            the date on which and the manner in which the written request for cohabitation was made to the respondent in accordance with paragraph (b) of section 49 of the Act or, if no such written request was made, particulars of the special circumstances that are alleged to justify the making of the decree notwithstanding that such a request was not made, shall be stated in the petition in addition to any other facts that are stated in the petition in pursuance of paragraph (g) of sub-rule 3 of rule 1 of this Order.

 

(2)            A petition for a decree of restitution of conjugal rights shall state-

 

(a)            that the respondent still refuses, at the date of filing the petition, to cohabit with, and render conjugal rights to, the petitioner; and

 

(b)            that the petitioner sincerely desires conjugal rights to be rendered by the respondent and is willing to render conjugal rights to the respondent.

 

 

Part 6

Filing Petitions and Notices of Petitions

 

 

27.   (1)            Subject to the sub-rule 2 of this rule at the time when a petition for a decree of-

 

(a)            dissolution of marriage ;

 

(b)            nullity of marriage ;

 

(c)            judicial separation ; or

 

(d)            restitution of conjugal rights,

 

                is filed, the petitioner shall, unless he is unable to do so, also file a marriage certificate in respect of the marriage to which the petition relates.

 

(2)            This rule does not apply in relation to a petition instituting proceedings in pursuance of leave granted under section 30 of the Act.

 

(3)            Subject to sub-rule (5) of this rule, if the marriage certificate filed in accordance with sub-rule (1) of this rule is not written in the English language, a translation, in the English language, of the marriage certificate shall also be filed at the same time.

 

(4)            A translation of a marriage certificate filed under sub-rule (3) of this rule shall be verified as a translation by the person who made the translation by an affidavit in which he also states that he is competent to make a translation of the marriage certificate.

 

(5)            Where-

 

(a)            a petitioner and respondent were married in a country the public records of which are not kept in the English language; and

 

(b)            the marriage certificate relating to the marriage that is filed in accordance with sub-rule (1) of this rule was issued in that country in two or more languages, including the English language,

 

                 notwithstanding sub-rule (3) and(4)of this rule, it is not necessary to file a translation in the English Language of the marriage certificate or an affidavit verifying the version in the English language of the marriage certificate so filed.

 

(6)            Where a petitioner is unable, for any reason, to comply with sub-rule (1) of this rule, the petitioner shall state in the affidavit verifying the petition the circumstances by reason of which he is unable so to comply.

 

(7)            In this rule, "marriage certificate", in relation to a marriage, whether solemnized in Nigeria or elsewhere, means-

 

(a)            an original certificate or record of the marriage; or

 

(b)            a copy or photographic representation of an original certificate or record or of an entry of the marriage in an official register of marriages, being a true copy or representation certified as a true copy or photographic representation by a person having the custody of the certificate or record, or of the register containing the entry, of which it purports to be a true copy of photographic representation.

 

28.   (1)            A petition or notice of proceedings which, under these Rules, a petitioner or respondent is required to serve on another person shall be a notice signed by the registrar of the court and sealed with the seal of the court and shall be-

 

(a)            in the case of a notice to be served on a person in a State or the Federal Capital Territory-in accordance with Form 8, Form 9 or Form 10 (whichever id appropriate); or

 

(b)            in any other case-in accordance with Form 8A.

 

(2)            Where a form of notice is properly presented to the court by or on behalf of the petitioner or respondent and a copy of the form of notice is filed, the registrar shall sign and seal the form of notice for the purpose of this rule.

 

29.           The time to be specified in a notice of petition or notice of proceedings as the time limited for the filing of an answer or reply, as the case requires, by a person entitled so to do is-

 

(a)            where the place of service of the notice is in Nigeria-twenty-eight days; or

 

(b)            in any other case-thirty days or such other reasonable time as is determined by the court, having regard to the place at which the notice is to be served and to the availability of air-mail services.

 

30.   (1)            Subject to this rule, a notice of petition or a notice of proceedings, in relation to a petition or answer, remains in force, for the purposes of service, until the expiration of twelve months from the day on which the petition or answer was filed.

 

(2)            The court, upon being satisfied that it is reasonable so to do, may grant an extension of the time within which the notice may be served until a date twelve months after the day on which it grants the extension or such earlier date as it thinks fit.

 

(3)            The court may grant an extension of the time within which a notice may be served notwithstanding that the notice has ceased to be in force and notwithstanding that the time has previously been extended.

 

(4)            Where the Court grants an extension of the time within which a notice may be served, the registrar shall write on the notice, and on the copy of the notice that was filed in pursuance of sub-rule (2) of rule 28 of this Order of these Rules, particulars of the extension, sign his name under those particulars and seal the particulars with the seal of the court.

 

(5)            In this rule-

 

                "answer" includes supplementary answer;

 

                "petition" includes supplementary petition.

 

31.   (1)            Where a notice of petition or notice of proceedings addressed to a person and signed by a register has been lost without having been served, the register of the court may, upon being satisfied of the loss, sign and seal another notice in lieu of the lost notice.

 

(2)            A notice of petition or notice of proceedings signed in pursuance of sub-rule (1) of this rule shall state the last day of the period for which it remains in force.

 

32.   (1)            A petitioner or respondent may, at the time of, or at any time within twelve months after, the filing of a petition or answer, procure the issue of a concurrent notice of petition or a concurrent notice of proceedings, or of more than one such concurrent notice, addressed to a person to whom an original notice of petition or notice of proceedings was addressed.

 

(2)            A concurrent notice of petition or notice of proceedings shall bears teste of the same day as the original notice of petition or notice of proceeding and shall be stamped with a stamp bearing the word "concurrent' and the date of issuing the concurrent notice.

 

(3)            The provisions of rules 29, 30 and 31 of this Order apply to and in relation to concurrent notices in like manner as they apply to and in relation to original notices.

 

 

Order VI

Service

 

 

Part 1

General Provisions relating to Service of Documents

 

 

1.             Where service of a document is required by these Rules to be effected on a person, service may, subject to the provisions of these Rules that limit the methods of service of particular classes of documents, be effected, either in or outside Nigeria-

 

(a)            by delivering the document to the person personally;

 

(b)            by serving the document on the person by post in accordance with rule 3 of this Order;

 

(c)            if the person has an address for service for the purpose of the proceedings-by delivering the document at that address or by posting the document (under prepaid postage) as a letter to the person, or his legal practitioner, as the case may be, at that address; or

 

(d)            by delivering the document at, or by properly addressing and posting (under prepaid postage) the document as a letter to the person at, the last address of the person known to the person on whose behalf the document is being served.

 

2.     (1)            Subject to sub-rule (2) of this rule, service of a document on a person by delivering it to him personally shall not be effected by the party to proceedings on whose behalf the document is being served but may be effected by another person in the presence of that party.

 

(2)            Where it is impracticable for service of a document on a person by delivering it to him personally to be effected by a person other than the party to the proceedings on whose behalf the document is being served, that party may effect service of the document on the person in that manner but in such a case, he shall state in any affidavit of the service of the document sworn by him the circumstances that rendered it impracticable for another person to effect the service.

 

(3)            Where service of a document on a person by delivering it to him personally is effected by the party on whose behalf the document is being served, that party shall obtain from the person a receipt for the document signed by the person unless the person refuses to sign and give a receipt for the document, and that party shall, in any affidavit of the service of the document sworn by him, state whether the person signed or refused to sign a receipt for the document.

 

3.     (1)            For the purpose of paragraph (b) of rule 1 of this Order, service of a document on a person shall be effected by properly addressing and posting (under prepaid postage) the document, together with-

 

(a)            a form in accordance with Form 11 for acknowledging service of the document; and

 

(b)            an envelope, being, in the case of service effected in Nigeria, a stamped envelope, having written on it the name of the person on whose behalf the document is being served, or the name of his legal practitioner, and the address for service of that person, as a letter, to the person at the last address of the person known to the person on whose behalf the document is being served.

 

(2)            Subject to the sub-rule (3) of this rule, where a document has been posted to a person in accordance with the provisions of preceding sub-rule (1) of this rule, service of the document on the person shall be deemed not to have been effected unless the person signs and returns to the person on whose behalf the document is being served or to his legal practitioner an acknowledgement of the service in accordance with Form 11.

 

(3)            Where a document instituting proceedings has been posted to a person in accordance with the provisions of sub-rule (1) of this rule, service of the document shall be deemed to have been duly effected on the person if, after the time when the document would in the ordinary course of post have been received by the person, the person files a document giving an address for service for the purpose of the proceedings.

 

(4)            Where service of a document has been effected by posting the document to a person in accordance with the provisions of sub-rule (1) of this rule, the date on which the person received the document shall be taken to be the date on which the service was effected.

 

4.            Where service of a document is effected on a person in accordance with paragraph (c) or (d) of rule 1 of this Order by posting the document to the person or to his legal practitioner, service of the document shall, unless the contrary is proved, be deemed to have been effected on the person at the time when the letter containing the document would, in the ordinary course of post, be delivered at the address to which it is posted.

 

5.     (1)            This rule applies, subject to the provisions of the relevant convention, in relation to service of a document in a country that is a party to a Convention, extending to the Federation, regarding Legal Proceedings in Civil and Commercial Matters.

 

(2)            Where, under a Convention referred to in the last preceding sub-rule, service of a document relating to proceedings is not to be effected in the country otherwise than in accordance with the Convention, service of such a document in the country shall not be effected otherwise than in accordance with this rule.

 

(3)            Where a party to proceedings who desires to effect service of a document relating to the proceedings on a person in a country referred to in sub-rule (1) of this rule files a request for service of the document, in accordance with Form 12, and deposits with the registrar of the court in which the proceedings are pending the documents required by sub-rule (4) of this rule to be deposited, the registrar shall forward the documents so deposited direct to the Attorney-General's Department for transmission to that country for service.

 

(4)            Subject to sub-rule (5) of this rule, the documents to be deposited under sub-rule (3) above are-

 

(a)            the document to be served;

 

(b)            a translation of the document into the language of the country in which the service is to be effected, being a translation bearing a certificate in that language, of the person who made the translation certifying that it is a translation of the document of which it purports to be a translation;

 

(c)            a copy of the document to be served and of the translation; and

 

(d)            such further copies (if any) of the document and translation as are required by the Convention.

 

(5)            A document, a translation of a document or a copy of a document shall, before being forwarded to the Attorney-General's Department in accordance with sub-rule (3) of this rule, be sealed with the seal of the court.

 

(6)            Where a registrar has received a certificate, transmitted through diplomatic channels, by a judicial authority in a country referred ton in sub-rule (1) of this rule certifying that a document has been served on a person on a date specified in the certificate, the certificate may be filed and, subject to sub-rule (7) of this rule, is then evidence of the matters stated in the certificate.

 

(7)            Where service of a document is required to be effected on a person in the matter refereed to in paragraph (a) of rule 1 of this order, the due service of the document shall be deemed not to have been proved by a certificate referred to in sub-rule (6) of this rule, unless-

 

(a)            it also certifies the means by which the person who served the document identified the person served; or

 

(b)            other evidence, whether by affidavit or otherwise, is furnished showing that the document came to the notice of the person on whom it was to be served.

 

6.     (1)            The court may, upon application made ex parte, dispense with the service of any process under the Act on a person if the court thinks it necessary or expedient to do so.

 

(2)            An order under sub-rule (1) of this rule may be made subject to such conditions (if any) as the court thinks fit.

 

7.     (1)            Where a court, upon application made ex parte by a party to proceedings for an order under this rule, is satisfied that it is not reasonably practicable for the party to effect service of a document in a manner specified in any of paragraphs (a) to (d), inclusive, of rule 1 of this Order that is applicable, the court may order that service of the document be effected in a manner specified in the order or that the giving of notice of the document and of its effect by advertisement or otherwise, as specified in the order, be substituted for service of the document.

 

(2)            Where an order has been made by the court authorising the giving of notice of a document by advertisement, the form of the advertisement shall be approved by a registrar.

 

(3)            Where an order of a kind referred to in sub-rule (1) of this rule has been made by the court in relation to service of a document on a person, compliance with the order shall, notwithstanding any order provision of these Rules, be deemed to be due service of the document on the person.

 

 

Part 2

Service of Petitions and Answers

 

 

9.     (1)            Subject to these Rules, a petitioner shall cause service of the petition to be effected on-

 

(a)            each other party to any proceedings instituted by the petition; and

 

(b)            any person specified in the petition as a person on or with whom the respondent is alleged to have committed rape or sodomy.

 

(2)            Where proceedings for a decree of dissolution of marriage on the ground specified in paragraph (h) of section 15 (2) of the Act and on no other ground are instituted by a petition, the last preceding sub-rule does not require service of the petition to be effected on any person.

 

(3)            Service of a petition shall be effected on a person-

 

(a)            by serving on the person in the manner referred to in paragraph (a) of rule 1 of this Order-

 

(i)            a sealed copy of the petition; and

 

(ii)            if the person served is the respondent, a notice of petition or, if the person served is not the respondent, a notice of proceedings; or

 

(b)            by serving on the person in the manner referred to in paragraph (b) of rule 1 of this Order-

 

(i)            a sealed copy of the petition;

 

(ii)            if the person served is the respondent, a notice of petition or, if the person served is not the respondent, a notice of proceedings;

 

(iii)            a form, in accordance with Form 11, for acknowledge service of the petition; and

 

(iv)            and envelope, being in the case of service effected in Nigeria, a stamped envelope, having written on it the name of the petitioner or his legal practitioner and the address for service of the petitioner.

 

9.     (1)            Subject to these Rules, a person on whose behalf an answer to a petition is filed shall cause service of the answer to be effected on-

 

(a)            each other party to any proceedings instituted by the petition who has an address for service for the purpose of the proceedings; and

 

(b)            any person specified in the answer as a person with or on whom the petitioner is alleged to have committed adultery, rape or sodomy.

 

(2)            Service of an answer to a petition shall be effected on a party to proceedings referred to in paragraph (a) of sub-rule (1) of this rule by serving, on the day on which the answer is filed or on the next following day, a copy of the answer on the person in a manner referred to in paragraph (c) of rule (1) of this Order.

 

(3)            Service of an answer to a petition shall be effected on a person referred to in paragraph (b) of sub-rule (1) of this rule-

 

(a)            by serving on the person, in the manner referred to in paragraph (a) of rule 1 of this Order-

 

(i)            a sealed copy of the answer; and

 

(ii)            a notice of proceedings; or

 

(b)            by serving on the person, in the manner referred to in paragraph (b) of rule 1 of this Order-

 

(i)            a sealed copy of the answer;

 

(ii)            a notice of proceedings

 

(iii)            a form, in accordance with Form 11, for acknowledging service of the answer; and

 

(iv)           an envelope, being, in the case of service effected in Nigeria, a stamped envelope, having written on it the name of the respondent or his solicitor and the address for service of the respondent.

 

(4)            Where a party to proceedings instituted by a petition files an address for service for the purpose of the proceedings on or after the day on which an answer to the petition is filed by another party to the proceedings, the party who filed the answer shall, upon request made by the first-mentioned party, cause service of a copy of the answer to be effected, in a manner referred to in paragraph (c) of rule 1 of this Order, on the first-mentioned party on the day on which the request is made or on the next following day.

 

10.   (1)            Service of a petition on a person is of no force and effect unless the notice of petition or notice of proceedings addressed to the person was in force, for the purpose of service, on the day on which service of the petition was effected.

 

(2)            Where, under these Rules, service of an answer on a person is required to be effected by serving on the person a notice of proceedings addressed to the person in addition to sealed copy of the answer, service of the answer on the person is of no force and effect unless the notice of proceedings addressed to the person was in force, for the purpose of services, on the day on which service of the answer was effected.

 

 

Part 3

Service on Infants and Persons of Unsound Mind

 

 

11.   (1)            Subject to this rule, service of a petition on an infant shall be effected by-

 

(a)            serving a sealed copy of the petition and a notice of petition or notice of proceedings, as the case requires, on the infant in a manner referred to in paragraph (a) or (b) of rule 1 of this Order; and

 

(b)            serving a sealed copy of the petition and a notice of proceedings, in a manner referred to in paragraph (a) or (b) of rule 1 of this Order, on a parent of the infant, a person with whom the infant is residing or such other person as a registrar specifies in an order made under sub-rule (3) of this rule.

 

(2)            Service of a sealed copy of a petition-

 

(a)            if a parent of the infant is a party-on a parent of the infant;

 

(b)            if a parent of the infant is not a party and service can be duly effected in Nigeria on a parent of the infant-on a person with whom the infant is residing (not being his parent); or

 

(c)            if a person with whom the infant is residing is under the age of twenty-one years or is not a kinsman of the infant-on that person, is not sufficient compliance with paragraph (b) of sub-rule (1) of this rule.

 

(3)            Where a court is satisfied that, for any reason, a petitioner would otherwise be unable to comply with paragraph (b) of sub-rule (1) of this rule, the court may, by order, specify a person who, in the opinion of the court, is a proper person to advise the infant in connexion with the proceedings instituted by the petition as the person on whom a sealed copy of the petition may be served for the purpose of complying with that paragraph.

 

(4)            Where a court is satisfied that, having regard to the age and understanding of the infant, it is proper so to do, the court may, by order, dispense with compliance with paragraph (b) of sub-rule (1) of this rule.

 

(5)            An application for an order under sub-rule (3) or (4) of this rule may be made ex parte.

 

(6)            The provisions of sub-rule (4) of this rule shall apply in relation to service of an answer on an infant who is specified in the answer as a person with or on whom the petitioner is alleged to have committed adultery, rape or sodomy as if-

 

(a)            references to a petition were references to an answer;

 

(b)            references to a petitioner were references to a party on whose behalf an answer is filed.

 

(c)            references to a notice of petition or notice of proceedings, as the case requires, were references to a notice of proceedings ; and

 

(d)            the reference in sub-rule (3) to proceedings instituted by the petition was a reference to the proceedings in answer to which the answer is filed and to any other proceedings instituted by the answer.

 

(7) In this rule

 

    "answer" includes supplementary answer

 

    "petition" includes supplementary petition.

 

12.   (1)            Unless the court otherwise orders, service of a petition shall be effected on a person of unsound mind by sending, in a manner referred to in paragraph (a) or (b) of rule 1 of this order, a seated copy of the petition and a notice of petition or notice of proceedings, as the case requires-

 

(a)            if there is a committee of the person of unsound mind-on that committee

 

(b)            if there is no such committee hut there is a committee of the estate of the person of unsound mind tin that committee

 

(c)            if there is no committee of the person, or committee of the estate of the person of unsound mind but the Attorney-General or an authorized person has signed a consent under Order IX rule 20 of these Rules to act as the guardian ad litem of the person of unsound mind -on the Attorney-General or the authorized person, as the case may he ; or

 

(d)            in any other case -on a person with whom the person of unsound mind is residing or the person tinder whose care he is.

 

(2)            Service of a petition shall be deemed not to have been effected on a person of unsound mind in accordance with the sub-rule (1) of this rule

 

(a)            unless the sealed copy of the petition so served had written on it a notice directing the person on whom it is actually served to bring the contents of the petition to the notice of the person of unsound mind if after consultation with the medical practitioner responsible for the treatment of the person of unsound mind, he is satisfied that it would not be detrimental to the health of the person of unsound mind to do so; and

 

(b)            unless the court is satisfied, by affidavit of the person on whom the petition is actually served or otherwise, that the contents of the petition were brought to the notice of the person of unsound mind or that the medical practitioner referred to in paragraph (a) above has expressed the opinion that would he detrimental to the health of the person of unsound mind to do so.

 

(3)            For the purposes of sub-rule (1) of this rule, a person of unsound mind who is a patient in an institution shall it deemed to be in the care of the superintendent or other person iii direct charge of the institution.

 

(4)            Sub-rules (1), (2) and (3) of this rule apply to the service of an answer on a person of unsound mind who is specified in the answer as a person with or on whom the petitioner is alleged to have committed adultery, rape or sodomy as if-

 

(a)            references to a petition were references to an answer; and

 

(b)            references to a notice of petition or notice of proceedings, as the case requires, were references to a notice of proceedings.

 

(5)            In this rule-"answer" includes supplementary answer "petition" includes supplementary petition.

 

 

Part 4

Proof of Service

 

 

13.   (1)            Subject to sub-rule (2) of this rule, where service of a document is effected on a person in the manner referred to in paragraph (a) of rule 1 of this Order, the due service of the document shall be deemed not to have been proved by affidavit unless the person who delivered the document to the person to he served states in an affidavit-

 

(a)            the date on which and place at which the document was so delivered and

 

(b)            the means by which he established that the person to whom the document was delivered was the person required to be served with the document.

 

(2)            Where service of a document, being a petition or answer, is effected on a person, being the respondent or the petitioner, as the case may be, in the manner referred to in paragraph (a) of rule 1 of this Order of these Rules and proof of the due service of the document is required at of the trial proceedings of a kind referred to in paragraph (a) of the definition of "matrimonial cause", the due service of the document shall be deemed not to have been proved by affidavit unless

 

(a)            sub-rule (1) of this rule has been complied with ; and

 

(b)            a person other than the person who delivered the document has, in an affidavit or in evidence given orally at the trial, verified the signature on a receipt given by the person to whom the document was delivered or, in some other manner, corroborated the fact that the person to whom the document was delivered is the person required to be served with the document.

 

(3)            An affidavit of service of a document on a person personally shall be in accordance with Form 13.

 

14.   (1)            Subject to sub-rule (2) of this rule, where service of a document is effected on a person in the manner referred to in paragraph (6) of rule I of this Order, the due service of the document shall be deemed not to have been proved by affidavit unless a person to whom an acknowledgment of service of the document was returned, being an acknowledgment that purports to be signed by the person to be served with the document, has deposed, in an affidavit to which the acknowledgment is annexed, to the manner in which the acknowledgment was returned to him.

 

(2)            Where service of a document, being a petition or answer, is effected on a person, being the respondent or the petitioner, as the case may be, in the manner referred to in paragraph (6) of rule 1 of this Order and proof of the due service of the document is required at the trial of proceedings of a kind referred to in paragraph (a) of the definition of "matrimonial cause", the due service of the document shall be deemed not to have been proved by affidavit unless-

 

(a)            the provisions of sub-rule 1 of this rule have been complied with and

 

(b)            the signature appearing on the acknowledgment of service of the document is verified as the signature of the person to be served with the document by the affidavit of, or by evidence given orally at the trial by, a person conversant with that signature.

 

(3)            The signature appearing on an acknowledgment shall not, for the purposes of paragraph (6) of sub-rule (2) of this rule, be verified by the party to proceedings on whose behalf the document was served unless-

 

(a)            it is not reasonably practicable for the signature to be verified by some other person ; and

 

(b)            the party states in his affidavit or in his evidence, as the case may be, the circumstances by reason of which it is not so reasonably practicable.

 

(4)            Where service of a document instituting proceedings is to be deemed to have been duly effected on a person by virtue of sub-rule (3) of rule 3 of this Order, nothing in this rule shall be taken to require proof, by affidavit, of the date on which the person received the document to comply with the provisions of this rule.

 

15.           Where service of a document is effected on a person in accordance with paragraph (c) or (d) of rule 1 of this Order by posting the document to the person or to his legal practitioner, the due service of the document shall be deemed not to have been proved by affidavit unless-

 

(a)            the person who posted the document has stated in an affidavit the manner in which the envelope containing the document was addressed, the day on which, and the time of the day and place at which, the document was posted and that the document was posted as a letter and postage was prepaid ; and

 

(b)            in a case where the document was posted to a person at an address other than the address for service of the person-the person on whose behalf the document was served has stated in an affidavit the last address of the person to be served that was known to him at the time of the posting.

 

16.   (1)            Where, in pursuance of an order of the court under these Rules, an advertisement is published in the Gazette, in the government gazette of a State or of the Capital Territory or in a newspaper, the person who obtained the order may-

 

(a)            deposit, in the proper office of the court, a copy of the page of the Gazette, government gazette or newspaper containing the advertisement ; or

 

(b)            file a memorandum, in accordance with Form I 3A, having the advertisement annexed to it.

 

(2)            Where the page of a copy of the Gazette, government gazette or newspaper containing the advertisement is deposited under sub-rule (1) of this rule, the registrar of the court shall cause the advertisement to be cut out of the page and annexed to a memorandum, in accordance with Form 14, referring to, and giving the date of publication of, the advertisement and shall file the memorandum.

 

(3)            A memorandum referred to in sub-rule (1) or (2) of this rule is evidence that the advertisement a copy of which is annexed to the memorandum was published in the Gazette, government gazette or newspaper specified in the memorandum on the date specified in the memorandum.

 

17.           Where a person states in an affidavit that lie delivered or posted a copy of an application or a notice of hearing to a person, another copy of the application or notice shall be annexed to the affidavit.

 

18.           Where a respondent or a person specified in a pleading as a person with or on whom a petitioner or respondent has committed adultery, rape or sodomy has given an address for service for the purpose of the proceedings the petition or pleading shall be deemed to have been duly served on the respondent or that person without further proof of the service and, unless an affidavit, or certificate under sub-rule (8) of rule 5 of this Order, of the due service of the petition or pleading was filed before the document giving the address for service was filed, the petition or pleading shall, for all purposes, be deemed to have been so served on the day on which the document giving the address for service was filed.