ADEBOWALE v. OLUWADAMILOLA

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MOHAMMED AMBI-USI DANJUMA, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Osun State, sitting at the Osogbo Judicial Division delivered by Hon. Justice S. O. Falola in Suit No HOS/23D/2011 on the 25/6/13, granting all the reliefs sought from the Court by the petitioner against the Respondent/Appellant. The following are the reliefs sought before the learned trial Court by the Petitioner:
a. A decree of nullity of marriage contracted between the Petitioner and the Respondent at the Osogbo Local Government Registry, Osogbo, Osun State, on the 10th of October, 2007, on the grounds that marriage has broken down irretrievably based on the fact;
i. That the Petitioner and the Respondent have lived apart for a continuous period of at least 3 years immediately preceding the presentation of this petition.
ii. That the Respondent has deserted the Petitioner for a continuous period of at least one year immediately preceding the presentation of the petition.
b. Custody of the only issue of the marriage, Joshua Adebowale.
c. An Order of the honourable Court directing the payment of the sum of Ten Million Naira by the Respondent to the Petitioner for the economic hardship caused her.
See the Petitioner’s Further Amended Petition and a Verifying Affidavit on pages 81 – 84 of the record.
Respondent’s Amended Answer to the petition and a cross petition dated and filed 21/01/13 is on pages 86 to 92 of the record.
Counsel on both sides filed their respective written addresses and hearing commenced before the trial Court on the 13th day of March, 2012. The Petitioner gave evidence for herself as PW1 and tendered Exhibit ‘A’, which was admitted by the Court. The respondent on his part testified as the DW1 and called another witness who gave evidence as the DW2.
Judgment was delivered by the learned trial Judge on the 25th day of June, 2013, granting all the reliefs sought by the Petitioner and awarded Two Million Naira (N2,000,000.00) General Damages against the Respondent/Appellant.
On being dissatisfied with the decision of the learned trial Court, the Appellant herein approached this Court vide a Notice of Appeal dated 26/8/2013 and filed 29/8/2013 containing five grounds of appeal from which Counsel formulated the following five issues for the determination of this appeal.
1. Whether the learned trial Judge was right to grant reliefs in matrimonial proceedings brought under the High Court Civil Procedure Rules of Osun State.
2. Whether the learned trial Judge was not in error to awarded damages in favour of the Petitioner premised on an application brought under a wrong law and without any evidence adduced to warrant same?
3. Whether the learned trial Judge was not in error to have granted the Petitioner the sole custody of the only child of the marriage in the face of overwhelming evidence to the contrary?
4. Whether the learned trial Judge was not in error to have placed the Appellant in a very tight condition of having to apply to the Court in any occasion when he intends to see his son?
5. Whether the learned trial judge was not in error to have held that the non compliance of the Petitioner petition with the mandatory provision of Order V. Rule 10 (1) of the Matrimonial Causes Rules 1983 as regard the form of verifying affidavit in a divorce petition as a mere irregularity.
Appellant’s brief of argument dated and filed 4/4/14 was deemed filed on 16/3/15 while Respondent’s brief of argument is dated and filed 23/6/15 and deemed filed on 24/5/16.
Respondent’s Counsel raised in their brief of argument a preliminary objection on the ground that the Appellant included in his notice of appeal dated 26/8/2013 but filed 29/8/2013, grounds 2 and (B), the grounds which he contends do not emanate from the final judgment of the Lower Court. She argued that the said grounds emanated from the Respondent’s motion on notice dated and filed 20th April, 2012 granted by the Court on the 11/6/12 and from which there was no appeal from the Appellant (within 14 days), it lapsed. She referred to pages 42 and 68 of the record in proof of her point. She argued that Appellant did not appeal against the said order of the Court and also failed to obtain the leave of the Court before making them grounds of appeal and formulated issues therefrom. Referring to the case of Obi V. NDIC (2007) All FWLR (Pt.393) 143 @ 153 – 154 and Section 24 (2) (a) of the Court of Appeal Act, Counsel submits that the said grounds of appeal came from an interlocutory decision and not from final judgment of the Court.

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She urged us to strike out the said grounds 2 and (B) contained in the notice of appeal.
Learned Counsel went further to contend that issues 3 and 4 of the Appellant does not relate to any of the grounds of appeal contained in the aforementioned Notice of Appeal referred to on pages 162 to 163 of the record, That issue of custody and application to the Court before the Appellant could see his child were part of the Lower Court’s decision which the Appellant failed to appeal against.
That, issues for determination must be distilled from the grounds of appeal which ground(s) must attack the ratio decidendi of the judgment and not anything said by way of Obiter dicta or be formulated inva quo. He cited the case of Chami V. UBA (2010) WRN 1 @ 16.
Counsel submitted that any issues raised which are completely alien to the grounds of appeal are incompetent and should be struck out together with the arguments proffered thereon. That, no issue is allowed outside the ground(s) of appeal. He cited Kraft Foods H. Inc. V. Allied Biscuits Co. Ltd. (2010) 31 WRN 162 @ 131; Oseni V. Bajulu (2010) 8 WRN 39 @ 54 – 55; and Okonobor V. D. Edegbe & Sons Co. Ltd (2010) 25 WRN 60 @ 66.
She urged the Court to strike out Issues 3 and 4 of the Appellant as contained in his brief of argument.
Respondent’s Counsel thus adopted the following three issues formulated by the Learned Counsel for the Appellant for the determination of the appeal; which in numbering, constitute issues 1, 2 and 5 of the Appellant’s issues.
They are:
1. WHETHER the learned trial judge was right to grant reliefs in matrimonial proceedings brought under the High Court Civil Procedure Rules of Osun State.
2. WHETHER the learned trial judge was not in error to awarded damages in favour of the Petitioner premised on an application brought under a wrong law and without any evidence adduce to warrant same?
3. WHETHER the learned trial judge was not in error to have held that the non compliance of the petitioner petition with the mandatory provision of Order V. Rule 10 (1) of the Matrimonial Causes Rules – 1983 as regard the form of verifying affidavit in a divorce petition as a mere irregularity.
Before I go into the arguments proferred by Counsel on both sides on the issues presented before us, it is pertinent as a matter of law to first and foremost determine the preliminary objection raised by the Counsel for the Respondent herein. The issues contained therein must first be disposed of before proceeding to the merits of the case. See Saraki V. Kotoye (1992) 9 NWLR (Pt. 264) 156 SC. The Supreme Court held in the case of Efet V. INEC (2011) 1 SCNJ 179 that: “The aim/essence of a preliminary objection is to terminate at the infancy, or as it were, to nip at the bud, without dissipating unnecessary energies in considering an unworthy or fruitless matter in a Court’s proceedings. It in other words, forecloses hearing of the matter in order to save time.”
There are two legs to the preliminary objection raised by the Learned Counsel for the Respondent. The first is that the Appellant’s grounds 2 and (B) as contained in the notice of appeal dated 26/8/13 did not emanate from the final decision of the Lower Court but from the Respondent’s motion on notice for amendment and recalling of RW1, dated and filed 20/4/2012. For purposes of clarity and with particular reference to grounds 2 and (B), the grounds of appeal as contained on pages 162 to 164 of the record are hereunder reproduced as numbered:
(1) The judgment is against the weight of evidence.
(2) The Learned trial judge erred in law when he granted an amendment in matrimonial proceeding brought by the petitioner under Order 39 Rule 1& 2 and Order 29 Rule 1 & 2 of the Osun State High Court
(2) The Learned trial judge also erred in law where he held in the judgment delivered on the 25th day of June, 2013 that the non compliance of the petitioner to the mandatory provision of Order V Rule 10 (1) of the Matrimonial Causes RULES 1983 regarding the form of the verifying affidavit in the petition was as to form and not substance and amounts to technicality.
(B) The learned trial judge also erred in law when he held that the Respondent/Appellant engaged in dubious business deal when there was no evidence to that effect throughout the proceeding before the Court.
(C) The learned trial judge erred in law when he awarded damages in sum of N2,000,000.00 (Two Million Naira) to the petitioner when there was no evidence led by the petitioner to show how she suffered damages over what she has condoned by conduct.
(5) The Learned trial judge equally erred in law by jumping into conclusion that the Respondent/Appellant is not responsible enough to take good care of his own child whom he had always catered for since birth without any contrary evidence before the Court to that effect.

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PARTICULARS OF ERROR
(a) That the award damages of the sum of N2,000,000.00 (Two Million Naira Only) to the petitioner/respondent was premised on an application brought under a wrong law and the Petitioner failed woefully to lead evidence to warrant the grant of damages.
(b) That the Petitioner/Respondent non compliance with the mandating provision of Order V Rule 10(1) of the Matrimonial Cases Rules 1983 is fatal to the petition and thus resulted to miscarriage of justice.
(c) The petitioner throughout the proceeding did not lead evidence in show how she suffered damages and thus resulted to miscarriage of justice.
(d) That the verifying affidavit attached to the petition grossly offends the provision of Order V Rule 10(1) of the Matrimonial Causes Rules, Cap 220 Laws of the Federation of Nigeria and cannot be held to be a mere technicality but goes to the root of the whole petition,
(e) That the principle of burden of proof that he who asserts must proof in civil proceedings equally applies to matrimonial proceedings.
I have gone through the record of this appeal and it is clear to me from the judgment of the learned trial Court spanning from pages 150 to 161 of the record that, the issues in contention did emanate therefrom.
On the competency of the petition before the learned trial Court, Respondent’s Counsel thereat referred to Order V. Rule 10 of the Matrimonial Causes Rules to the effect that the verifying Affidavit and the petition ought to be contained in one sheet of paper and not separate sheets of papers. The position of the learned trial Judge on this as contained on page 160 of the record is as follows: “My simple reaction is that the complaint of the Respondent is as to form and not substance of the petitions -.”
On page 161 of the record, the trial Court made it clear in its judgment to wit:
- a man who calls himself a medical Doctor in a civilized country must have disappointed a lot of his admirers for jumping from one failed marriage, a dubious business deal and imprisonment in Isreal over fake identity.”
Juxtaposing the above excerpts of the final decision of the trial Court and grounds 2 and (B) of the grounds of appeal earlier reproduced, I am left without doubt that both grounds are derived from the judgment of the learned trial Court. The argument of the Learned Counsel for the Respondent herein relating to grounds 2 and (B) contained in the Appellant’s Notice of Appeal not emanating from the final decision of the trial Court is unfounded; it cannot stand. I hold that this leg of the Respondents preliminary objection fails. Accordingly, it is dismissed.
The second leg of the Respondent’s objection is to the effect that issues 2 and 3 distilled by the Learned Counsel for the Appellant does not relate to any of the Appellant’s grounds of appeal before the Court. I have read the said grounds of appeal and I find it difficult to see the nexus between the Appellant’s Issues 2 and 3 and his grounds of appeal as contained in the notice of appeal. I am in accord with the contention of the Learned Counsel for the Respondent that the said issues 1 & 2 did not emanate from the grounds of appeal filed by the Appellant. It was held in the case of Achiakpa V. Nduka (2001) 7 SCNJ 585 @ 617 that “- an Appellate Court can only hear and decide on issues raised on the grounds of appeal filed before it and an issue not covered by any ground of appeal is incompetent and will be struck out.” See also the case of Akpan V. The State (2001) 7 SCNJ 567 @ 578.
In view of the above authorities and my findings herein, I hold that issues 2 and 3 submitted by the Learned Counsel for the Appellant for the determination of this appeal do not relate to or emanate from any of the grounds of appeal before the Court. The issues are incompetent. This leg of the Respondent’s preliminary objection is upheld.
Having dismissed the first leg of the Respondent’s objection which border on the competence of the Appellant’s grounds 2 and (B) contained in the notice of appeal before the Court, I hold that the said grounds complained against are valid. It is not correct, considering the trial Court’s position on pages 160 and 161 of the record as earlier excerpted to say that grounds 2 and (B) did not emanate from its final decision.

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However, the second leg of the Respondent’s2 objection I have upheld. The result is that issues 2 and 3 of the Appellant not been in compliance with the provisions of the law are unacceptable; they are hereby struck out. The arguments proffered by Learned Counsel on both issues are thus invalid and are hereby discountenanced.
The Appellant’s surviving issues before the Court therefore are Issues numbered as 3.01, 3.02 and 3.05. All the three issues were adopted by the Learned Counsel for the Respondent for the determination of the Appeal.
The issues will now read thus:
1. WHETHER the learned trial judge was right to grant reliefs in matrimonial proceedings brought under the High Court Civil Procedure Rules of Osun State.
2. WHETHER the learned trial judge was not in error to awarded damages in favour of the Petitioner premised on an application brought under a wrong law and without any evidence adduce to warrant same?
3. WHETHER the learned trial judge was not in error to have held that the non compliance – of the petitioner petition with the mandatory provision of Order V. Rule 10 (1) of the Matrimonial Causes Rules – 1983 as regard the form of verifying affidavit in a divorce petition as a mere irregularity.
I accordingly adopt the above three Issues which I have no doubt will sufficiently determine the appeal.
ARGUMENTS:
WHETHER the learned trial judge was right to grant reliefs in matrimonial proceedings brought under the High Court Civil Procedure Rules of Osun State:
Learned Counsel for the Appellant began his argument by citing Order 29 Rules 1 and 2 and Order 39, Rules 1and 2 of the High Court of Osun State Civil Procedure Rules as amended. That Order 39, Rules 1 and 2 under which the Petitioner brought an application upon which the award of Two Million Naira (N2,000,000.00) damages was made by the learned trial Court was not applicable in this case. He submitted that matrimonial proceedings are special proceedings guided by the provisions of the Matrimonial Causes Act and Matrimonial Causes Rules. Learned Counsel proceeded to cite the provisions of Sections 1, 2 and 3 of the Matrimonial Causes Act in an effort to justify his argument on the Court’s jurisdiction to award damages under a wrong law. That the position of the learned trial Court in that regard should be condemned in strong terms.The second issue, which is: Whether the learned trial Judge was not in error to have awarded damages in favour of the Petitioner premised on defective affidavit in support of the motion on notice and without any evidence led to merit same; the Learned Counsel for the Appellant contended that the affidavit in support of the motion dated 20/4/2012 upon which the learned trial Judge awarded two million naira (N2,000,000.00) damages was defective and, it was amended without the leave of the Court. That the affidavit was not in compliance with the provisions of Sections 114, 117 (2) and 118 of the Evidence of the Evidence Act, 2011. Counsel argued that the Petitioner did not at any point of the proceedings lead evidence to prove that she indeed suffered damages to warrant the award of the said damages by the Court below. He prayed the Court to reverse the trial Court’s decision.
Learned Respondent’s Counsel reacted to the Appellant’s arguments in Issues 1 and 2 together, for reason that both issues are similar. He conceded to the fact that the application of the Respondent dated and filed 20/4/2012 for the purpose of recalling the RW1 for further evidence and

amendment of the petition was brought under Orders 29 and 39 Rules 1 and 2 respectively of the Osun State High Court Civil Procedure Rule and under the inherent jurisdiction of the Court. She referred to the Ruling of the learned trial Court of 11/6/2012 wherein the Court granted the said Order.
Counsel refuted the Appellant’s argument that the trial Court’s award of two Million Naira (N2,000,000.00) damages was premised on the aforementioned application.
She posits that the Petitioner hinged the application on the inherent jurisdiction of the Court; that even if the application was brought under a wrong law, once the relief contained in the motion is within the Court’s jurisdiction, it can go ahead to grant. Counsel submits that rules of Court are meant to guide parties in proceedings before the Court and the Court cannot blindly follow the rules if it will result in sacrificing justice on the altar of strict adherence to the rules of Court. She referred to the case of Olatunji V. Owena Bank Plc. (2001) FWLR (Pt.54) 342 @ 249.
Respondent’s Counsel further argued that the award by the trial Court of damages against the

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Respondent/Appellant was on the basis of the evidence led by both parties before the Court. She contended that the order granted by the learned trial Court was for the amendment of the Respondent’s petition. She cited the cases of Buhari V. INEC (2008) 18 WRN 36 @ 96; Oduola V. Coker (1981) 5 SC 197, to the extent that a Counsel’s address however ingenious or brilliant it might be, cannot substitute evidence or pleadings.
On the affidavit attached to the said motion, Counsel submits that it does not offend the provisions of the Evidence Act, Sections 114, 117 (2) and 118 as argued by the Learned Counsel for the Appellant that the amendment in the said affidavit was in respect of the letter ‘R’ to reflect RW1, that that is not substantial as to vitiate the processes. Counsel further contended that the above mentioned amendment affects only paragraph 6 of the said affidavit, that even if the whole paragraph is struck out in the event that it offends the earlier mentioned provisions of the Evidence Act, 2011 the remaining paragraphs of the said process (affidavit) are valid as to grant the Respondent’s motion. She maintained the view that the Court awarded general damages, on the basis of the facts presented before her. Learned Counsel continued in her argument that the motion brought before the Lower Court by the Respondent herein was competent and the award by the trial Court of damages was not hinged on same. He urged us to resolve issues 1 and 2 against the Appellant.
RESOLUTION.
The matter before the Court borders on Matrimonial Causes which is guided by the Provision of the Matrimonial Causes Act and the Matrimonial Causes Rules. By the Provision of the Matrimonial Causes Act. Cap. M7, Laws of the Federation of Nigeria, 1970, the High Court is vested with the jurisdiction to hear and determine matrimonial causes. Section 2 (1) of the Act provides as follows:
Subject to this Act, a person may institute a matrimonial cause under this Act in the High Court of any State of the Federation; and for that purpose the High Court of each State of the Federation shall have jurisdiction to hear and determine.
a. Matrimonial causes instituted under this Act; and
b. Matrimonial causes (not being matrimonial causes to which Section 101 of this Act applies) continued in accordance with the provisions of Part IX of this Act, so however that jurisdiction under this Act in respect of matrimonial causes within this paragraph shall be restricted to the Court in which the matrimonial cause was instituted,
and in any case where maintenance is ordered in proceedings in a High Court, a Court of summary jurisdiction in any State shall have jurisdiction to enforce payment in summary manner.
This case was filed before the learned trial Court by way of petition in compliance with the provision of the law as provided above. It is therefore not in dispute that the matter was properly before the trial Court. As can be gleaned from the record, the Respondent/Appellant gave evidence as the DW1 at the trial on the 17th day of April, 2012 (see pages 125 to 132 of the record). The application which is the bone of contention brought under Order 39 Rule 1 and 2 and Order 29 Rule 1 and 2 of the High Court of Osun State Civil Procedure Rules by the Petitioner thereat is dated and filed 20/4/2012 praying the Court for the following orders:
1. AN ORDER of the Honourable Court granting leave to the Petitioner to recall RW1 i.e. the Respondent for purposes of giving evidence in this case.
2. AN ORDER of the Honourable Court granting leave to the Petitioner to amend his petition in line with the new fact and evidence of the Respondent.
3. And for such further Order as the Honourable Court may deem fit to make in the given circumstance. See page 42 of the record.

The arguments proffered by the Learned Counsel for the Respondent herein is that there was the need for the recall of the DW1 for cross-examination due to the emergence of new facts in the evidence of the said DW1 before the Court, which also prompted the Petitioner to amend her petition. The application in question was supported by an affidavit and same was granted by the learned trial Court.

I have gone through the record and the evidence of parties before the Court. I have also considered the arguments of Counsel on both sides. The contention of the Learned Counsel for the Appellant that the award by the learned trial Court of General Damages of two Million naira (N2,000,000.00) which in his view was hinged on the motion on notice dated 20/4/2012 is to my mind not in order.

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The learned trial Court in the exercise of its jurisdiction as enshrined in the Matrimonial Causes Act, to entertain the matter filed before it granted the prayers sought by the Petitioner/Respondent in the motion aforementioned and there was no appeal arising from the order of the Court. It is not correct in my view to say that the motion dated 20/4/2012 was brought under a wrong law not under the purview of the trial Court to grant, more so that the Court was exercising its inherent jurisdiction to adjudicate on the matter.
In any case, there is no prayer contained in the said motion seeking for damages before the Court. The learned trial Judge held in his judgment on page 161 of the record that All the reliefs contained in the Amended Petition for divorce are granted. I award a sum of N2.Million general damages in favour of the Petitioner and against the Respondent for deceiving the Petitioner into contracting a void and illegal marriage and for taking the Petitioner through unnecessary trauma.”
Unlike the special damages which need to be particularized and specifically pleaded and proved, the law is trite that an award of general damages is an award made at the discretion of the Court. See the cases of Anambra State Govt. V. Gemex Int’l Ltd (2012) 1 NWLR (Pt. 1281) 3333; Nnadi V. Okoro(1998) 1 NWLR (Pt.535) 573.
It is my finding therefore that the damages awarded against the Respondent/Appellant by the learned trial Judge was a result of the cause of action presented before the Court. A cause of action is defined to mean “The fact or facts which establishes or give rise to a right of action and it is the factual situation which gives a person the right to judicial relief.” See A.G. (Fed.) V. A.Gs (All the States) supra; Egbe V. Adefarasin (1987) 1 NWLR (Pt.47) 1.
Order 29 Rule 1 & 2 and Order 39 Rule 1 & 2 of the High Court of Osun State Civil Procedure Rules are rules of Court meant to direct its practice and procedure in order to achieve justice. These rules cannot however take the place of the law under which the Court obtain its jurisdiction to operate; that is why rules may be waived where Court considers it in the interest of justice to so do. It was held in A.G (Federation) V. A.Gs (All the States) (2001) 7 SCNJ 1 @ 35 that - the provision in Order 6 Rule 3 (1) are by the use of the word ‘May’ only directive and not mandatory and so can be overlooked. At any rate, we can waive the irregularity under Order 10 Rule (1) of the rules”. The Supreme Court also held in the case of Anyanwoko V. Okoye (koye) 1 SCNJ 148 @ 159that:
“Rules of Court are Rules of procedure. They do not by themselves and of themselves alone confer jurisdiction. They merely regulate the exercise of a jurisdiction… it is untenable therefore for the Appellant to contend that the breach of the provision of Order 6 Rule 8 of the Rules of Court robbed the Court of any jurisdiction. The jurisdiction of a Court donated either by the Constitution or by statute remains unaffected by breaches of Rules of Court.”
Guided by the above authorities, I hold the firm view that the rule under which the motion on notice dated 20/4/2012 was bought before the Court below can be likened to a mere irregularity which can be waived. I hold that the reliefs granted by the learned trial Court brought under its rules (Order 29, Rule 1 & 2, Order 39, Rule 1 & 2) was in the exercise of its jurisdiction; it was in order. I find the award of damages made by the trial Court in favour of the Petitioner to also be in order as same was based on facts of this case and the evidence adduced by parties; contrary to the contention of the Learned Counsel for the Appellant that it was premised on a motion supported by a defective affidavit.
Issues 1 and 2 which I believe to be similar are resolved in favour of the Respondent and against the Appellant.
ISSUE THREE:
WHETHER the learned trial judge was not in error to have held that the non compliance of the petitioner petition with the mandatory provision of Order V. Rule 10 (1) of the Matrimonial Causes Rules 1983 as regard the form of verifying affidavit in a divorce petition as a mere irregularity.
The contention of the Learned Counsel for the Appellant on this issue is that, the provision of Order V. Rule 10(1) of the Matrimonial Cause Rules 1983 made it mandatory for a verifying Affidavit to a petition to be written on the petition itself and not headed separately in a different sheet. He relied on the authority of this Court in the case of Mrs. Justina Chinese Unegbo V. Emmanuel Chike Unegbo (2004) 11 NWLR (Pt.332) @ 247 to strongly argue that the verifying affidavit in question was

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not in compliance with the law and thus render the petition incompetent. That the error committed was fatal and irreversible. He urged us to dismiss the petition. In his conclusion on this issue, Counsel prayed the Court to allow the appeal, set aside the decision of the Lower Court and remit the matter to the Lower Court for a retrial.
In reply to this issue, learned Respondent’s Counsel referred to pages 19 to 35 of the record to establish fact that the Appellant herein who was respondent before the Lower Court did file Answer and a Cross petition after the service of the petition on him.
He further referred to pages 86 to 91 of the record to contend that no where even in his Amended Answer and Cross Petition did the Appellant raise the issue of jurisdiction of the Court. He posits that Order VII Rule 3 of the Matrimonial Causes Rules 1983 requires any Respondent who wants to challenge the jurisdiction of the Court regarding a petition before it to file an answer under protest. Counsel argued that the procedure for objecting to the jurisdiction of a Court to hear a petition of such nature is provided under Order VII Rule 3 (1), (2), (3), (4), (5),(6), (7), and (8) of the Matrimonial Causes Rules.
Respondent’s Counsel expressed the view that the Petitioner’s petition filed with an affidavit verifying facts complied with the provisions of Order V. Rule 10 (1) of the Matrimonial Causes Rules.
Counsel submits that the verifying affidavit was deposed to by the Petitioner and filed alongside the petition and not a disjunct, distinct or separate process. That only one process, a petition of decree of nullity of marriage was filed on the 4/12/2012. That all the documents contained in the said process were assessed by the registrar of the Court and fees paid for as a single process. That the argument proffered by the Appellant’s Counsel is misleading and the authority cited inapplicable.
Learned Counsel maintained that the petitioner’s verifying affidavit conform with the provision of Section 117(1) of the Evidence Act, 2011. He further referred to Order V. Rule 10 (1) (a), (b); (2), (3) and (4) and also Order XXI Rule 2, 3 and 4 to the extent that an affidavit lately filed by the Petitioner is acceptable in law.
Counsel argued on the above rules that the contention of the Learned Counsel for the Appellant urging the Court to dismiss the petition is misleading in view of the fact that parties on both sides are seeking dissolution of their marriage.
He argued that the Appellant herein having not complied with Order VII Rule 3 in timeously raising his objection, has by filing his answer and cross-petition waived the right to so raise objection on issue of jurisdiction. He referred to Order VII Rule 3 (6). Counsel in an effort to establish waiver, referred to the case of Nig. Ports Plc. V. Duncan Mr. (Nig.) Ltd (2011) 6 WRN 88 @ 93, contending that once a step is taken in the proceedings by a party complaining about the breach of the Rules of the Court, he is said to have waived the breach. He further relied on the case of H.N.B. V. Ochete (2000) 19 WRN 20 @ 41. Counsel urged the Court to dismiss the appeal with cost.
In reply to the Respondent’s brief of argument, learned Counsel for the Appellant submits that damages were not part of the reliefs sought by the Petitioner before the Lower Court. That damages was awarded by the trial Court based on an application which according to him was brought under a wrong law. Counsel cited the case of U.A.C. Ltd v. Macfoy (1961) 3 All ER 1172 to support the point that the petition before the trial Court was incompetent. He submitted that an issue for determination can arise from two or more grounds of appeal and therefore do not require the leave of this Court in respect of ground two of the grounds of appeal as argued by the Counsel for the Respondent, in order to succeed.
He referred to the case of African Petroleum Ltd V. J. K. Owodunmi. SC.72/1990; (1991) 11 SC. Counsel maintained that the affidavit attached to the Petitioner’s petition affects the jurisdiction of the trial Court, rendering it incompetent to entertain the said petition. He referred to the case of Odiase & Anor V. Agho & Ors SC. 337/1969. Counsel concluded by urging the Court to allow the appeal and dismiss the petition.
RESOLUTION
The grouse of the Appellant herein as contended by Counsel is that the verifying affidavit accompanying the Petitioner’s petition before the learned trial Court does not comply with the provision of Order V Rule 10 (1) of the Matrimonial Causes Rules, 1983 which in his view made it mandatory for a verifying affidavit to be written on

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the petition itself and not headed separately. Order V Rule 10 (1) of the Matrimonial Causes Rules provides that:
“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.”
Learned Counsel for the Respondent countered the Appellant’s Counsel’s arguments by relying on the provision of Order VII Rule 3 (1) to (8) to the extent that the Appellant herein who was Respondent at the trial, in response to the Petitioner’s petition, filed an Answer and Cross-petition without raising objection as required by law. Order VII Rule 3 (1), (2) and (6) states that:
“(1) A Respondent or Co-Respondent to a petition who desires to have the jurisdiction of the Court to which the petition is addressed determined shall file an answer under protest in accordance with Form 16, Objecting to the jurisdiction of that Court.
(2) An answer under protest shall state the grounds on which the Respondent objects to the jurisdiction of the Court.
(6) Where the party filing an answer under protest does not file the application referred to in Sub-rule (3) at this rule within the time limited by that sub-rule, the party shall be deemed to have waived the objection.
These rules of procedure are established to regulate the Court’s exercise of its jurisdiction; they do not by themselves confer jurisdiction in the Courts. It is trite that Rules of Court are not made for mere decoration but to be obeyed. See Oyegun V. Nzeribe (2010) 1 SCNJ 127.
It is obvious from the answer and the cross-petition filed by the Respondent/Appellant that he did not challenge or debunk the competency of the verifying affidavit accompanying the petitioner’s petition before the learned trial Court. It was held in the case of Nasir V. Civil Service (2010) 2 SCNJ 184 @ 194 that “Evidence that are relevant to the matter in controversy, and that have not been challenged or debunked remain good credible evidence that may be used in the just determination of dispute. See also Adeleke V. Iyanda (2001) 13 NWLR (Pt.729) 1; Aikhianbare V. Omoregie (1976) 12 SC 11; Obembe V. Wemabod (1977) 5 SC 115.
It is therefore pertinent to note that in a matter such as the instant case, objections in respect of a petition filed before the Court be timeously raised in compliance with the provision of the law. Raising such an objection after further steps have been taken in the proceedings before the Court offends the rule of procedure of Court and law and which is tantamount to waiving the objection. It was further held in Nasir V. Civil Service supra thus:
“Where a party fails to raise an objection during trial, he is deemed to have waived his right to do so on appeal on the pertinent point or procedure.”
The learned Counsel for the Appellant in his argument on this issue, placed heavy reliance on the authority of this Court in Uneobu V. Unegbu (2004) 11 NWLR (Pt.332) 337 @ 349, that, the Petitioner’s petition before the trial Court is incompetent because the verifying affidavit, headed in the Court’s name was not in compliance with Order V Rule 10(1) of the Matrimonial Causes Rules, 1983. It is to be noted that, in Unegbu V. Unegbu (supra), the Appellant thereat upon being served with the petition and all the processes, promptly filed a motion seeking for an order of the trial Court to strike out the petition as being incompetent. That was not the case herein because such procedure was not followed and therefore, the objection is deemed to have been waived. It was decided in Anyanwoko V. Okoye (supra) that:
“Where a party has become aware of non compliance, or where a writ is defective he should apply for striking out of same before taking any further steps in the proceedings. Otherwise he will be estopped from raising the issue of defect.”
The Appellant herein having not raised objection on issue of defect but rather, proceeded to take further steps in the proceedings is by law estopped from doing so before this Court. The decision of this Court in Unegbu V. Unegbu (supra) relied upon by the learned Counsel for the Appellant is inapplicable herein. The issues relating to verifying affidavits in both cases which obviously differ and the position of the law in that regard is clear. This issue is resolved against the Appellant and in favour of the Respondent.
It is clear to me from the record of this appeal that the learned trial Judge did an excellent work in the adjudicatory process before arriving at his decision in the judgment he delivered in Suit No. HOS/23D/11.

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The 3 standing issues in this appeal have been resolved against the Appellant and for the Respondent. The judgment of the learned trial Court in the above suit delivered on the 25/6/2013 is upheld.
Accordingly, this appeal lacks merit and it is hereby dismissed.
UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form, the judgment just delivered by my learned brother Mohammed Ambi-Usi Danjuma, JCA. I agree with him that general damages need not be pleaded to be awarded.
The term general damages covers all losses which are not capable of exact quantification. It includes all non-financial loss (past and future) and future financial loss. Items of general damages need not and should not be specifically pleaded, but some evidence of such damage is required. Heads of general damages are (a) pain and suffering; (b) loss of amenities (c) loss of expectation of life (d) future loss of earnings or earning capacity; and (D future expenses. Okuneye vs. Lagos City Council (1973) 2 CCHCS pg.38.
There is no fixed Rule by which to assess general damages. It is indeed difficult, to ascertain. It is always left at the discretion of the Court having placed all relevant and available material before it. The Court is therefore expected to exercise its discretion judiciously to award a fair and reasonable compensation having regard to the circumstances of the particular loss. Okuneye vs. Lagos City Council (supra).
With this and the more robust reasoning, I also find the appeal unmeritorious. It is dismissed.
OBANDE FESTUS OGBUINYA, J.C.A.: I had the privilege to peruse, in advance, the well-articulated leading judgment delivered by my learned brother: Mohammed A. Danjuma, JCA. I am in, total, agreement with the reasoning and conclusion in it. I too, dismiss the appeal for being, wholly, unmeritorious. I abide by the consequential orders decreed in the succinct leading judgment.
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