Divorce case swings between two courts in four years OCTOBER 7, 2013 BY ADE ADESOMOJU 1 Comment PHILLIPS When on November 2, 2009, Mr. Rahman Alayande approached a Lagos High Court in Igbosere seeking a divorce between him and his wife, he had the notion that within a year, the marriage which he claimed to have been tired of, would be dissolved. Rahman was joined with his wife, Modinat, at the Marriage Registry in Mushin, Lagos State, on November 17, 2005. After Rahman filed the suit, Modinat consented to the dissolution of the marriage during a compulsory conference ordered by the court. Despite that, the parties still needed the court to pronounce the dissolution and make specific orders concerning who takes custody of their only child, Fawaz, and the funding of his education and welfare thereafter. Four years of commencing the suit, Rahman’s expectation has not been met as the case is still being transferred back and forth two courts of the Lagos High Court, denying the estranged couple the opportunity to commence new marital lives as they may wish. The suit, which first came up before Justice Adebisi Kayode-Ogunmekan on December 7, 2009, has never been spared of all the encumbrances, which make Nigeria’s judicial system grinds slowly. It has been a victim of both lopsided judicial administration and antics of lawyers who are fond of deploying delay tactics which judges find difficult to resist. The case was re-assigned to Justice Olayinka Gbajabiamila after Kayode-Ogunmekan was redeployed from the Family and Probate Division to the Land Division of the Lagos State Judiciary in April 2010. Surprisingly, the case returned to Kayode-Ogunmekan, who was, by the latest redeployment of the state judges in June 2013, transferred back to the Family and Probate Division. The implication of the delay suffered by case is that neither of the parties can go into marriage with any other persons until the court makes a pronouncement dissolving the marriage. Any of the parties who takes such step without a pronouncement of the court dissolving the earlier marriage can become guilty of bigamy. History of the case Divorce proceedings are sui generis (of their own class) and are usually commenced as petitions addressed to the Chief Registrar of the state High Court. The proceedings are guided by the Matrimonial Causes Act 2004 and the Matrimonial Causes Rules 2004, both Laws of the Federation of Nigeria. This particular suit with the tag, HD/281/2009, was commenced as a petition dated November 2, 2009 by the petitioner, who is the husband, Rahman. The respondent, Modinat, had subsequently filed her response (otherwise called answers). Following that, Rahman, through his counsel, Mr. Yemi Omodele, filed a motion seeking the court to order his wife to return their child, Fawaz, to his former school. The motion had not been heard when Justice Kayode-Ogunmekan ordered that a compulsory conference be held between the parties to narrow down the issues arising from the dispute. She had adjourned till April 2010 for the report of the compulsory conference to be tendered. However, before the next date, Justice Kayode-Ogunmekan was affected by redeployment of the state judges which was carried out by the then Chief Judge of Lagos State, Justice Inumidun Akande (now retired). Judges that are affected by redeployment, which is done in every three years in the Lagos State Judiciary, are expected to go to their new division along with their part-heard matters. Matters which have not proceeded to trial are expected to be left behind for the incoming judge to take over. The report of compulsory conference dated April 3, 2010 was later tendered before Justice Gbajabiamila who took over the case and Forms 32, 33 and 34 were subsequently issued. Form 32 is the request to set petition down for trial form; Form 33 is the notice of trial form and Form 34 is registrar’s certificate showing the petition is ready for trial. After the case was set down for trial, the suit was later delayed by the request by the respondent to change counsel. It suffered another delay when a motion was filed by the new lawyer, Mr. Oyeniyi Akande, seeking an order directing Rahman to return certain items in his possession to his wife, Modinat, who was said to be the owner of the belongings. The court made the order on May 7, 2012 only for the Rahman to later seek the setting aside of the order on the grounds that he was not duly served with the respondent’s application. The court later varied the order allowing Rahman to withhold some of the items pending the determination of the case. Trial eventually started on June 4, 2013 with Rahman testifying. However, Rahman had just sworn on oath when the respondent’s lawyer sought to amend his client’s papers. The judge acceded to the request and adjourned till June 13, 2013. The trial was further stalled on June 13 as the respondent did not file the amended papers . Cost of N10,000 was awarded against the respondent’s lawyer, who had sought for a longer period to file the amended papers. The matter was then adjourned till October 3, 2013. However, between June and October, there was a fresh redeployment of judges which saw Gbajabiamila transferred out of the Family and Probate Division and Kayode-Ogunmekan who started the case, redeployed back to the Family and Probate Division. It took time to realise that Gbajabiamila had left the case behind and that it had been returned to Kayode-Ogunmekan. However, when the matter was called at Kayode-Ogunmekan’s court on October 3, the judge directed that the matter be returned to the Head Judge of the Lagos Division of the state judiciary having become part-heard because the first witness had been called. She opined that the case ought not to be left behind by Gbajabiamila since it was already a part-heard matter. The matter was then adjourned till October 15. Not until then will anyone know the actual judge that will continue presiding over the case. Even then, it will not be known yet, how long Rahman and Modinat, who are both in their early 30s, will have to wait to begin their new lives.